Appeals Court Stops Arizona Fetal-Pain Based Abortion Ban

State   |   Steven Ertelt   |   Aug 1, 2012   |   5:22PM   |   Phoenix, AZ

Two days after a federal judge issued a lengthy opinion based on Supreme Court case law upholding an Arizona ban on abortions after 20 weeks of pregnancy based on fetal pain, a federal appeals court approved an injunction preventing it from taking effect.

The 9th Circuit Court of Appeals issued a preliminary injunction that will block the Arizona law from taking effect this week and stopping late abortions.

The pro-abortion Center for Reproductive Rights and the ACLU filed an emergency appeal after the ruling by the federal judge okayed the law. The appellate court blocked the law while it considers the underlying legal challenge to its constitutionality.

“Today we have won a critical victory,” CRR president Nancy Northup said in a statement praising the decision. “We will continue this battle now to ensure that the private and personal decisions of Arizona women are not subject to arbitrary and dangerous restrictions advanced by an extreme anti-choice agenda.”

Alliance Defending Freedom Senior Counsel Steven Aden responded to LifeNews, saying: “Every innocent life deserves to be protected. Not only does this law protect children in the womb who experience horrific pain during a late-term abortion, it also protects mothers from the dangers and tremendous psychological consequences of late-term abortions. Though the 9th Circuit’s stay is regrettable, all it has done is give itself time to fully consider the case. Once it does, it should see the merits of the district court’s decision and uphold Arizona’s law.”

The ACLU sued to stop the law after legislators passed the bill to ban abortions after that period of time except in very rare cases of medical emergency. The bill also requires abortion facilities to allow women to have an ultrasound of their unborn baby at least 24 hours prior to having the abortion. In many cases women change their minds about a planned abortion after seeing the images of their developing child.

Against the best interests of the health and safety of Arizona’s women, the American Civil Liberties Union and the Center for Reproductive Rights filed a lawsuit to block the law from going into effect on August 2 as planned.

Judge James Teilborg’s ruling acknowledged prior Supreme Court rulings saying states may not prohibit abortions before viability. But he said the law “does not impose a substantial obstacle to previability abortions.” He said state’s have a legitimate reason to protect unborn children during that time.

“There is no question that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman,” he wrote, quoting from the Supreme Court case that upheld the federal ban on partial-birth abortions.

He also rejected pro-abortion arguments that the law prevents women from having abortions if the baby suffers from very severe abnormalities incompatible with life, saying evidence submitting court “stops short of claiming that there are any conditions that could only by diagnosed after 20 weeks that could not have been found before that time.”

“The court finds that it would be extremely rare to find a condition that could be diagnosed after 20 weeks that could not have been diagnosed earlier,” he wrote.

The judge also did not go along with pro-abortion arguments that a diagnosis of fetal abnormalities will not occur until after 20 weeks and, even if a mother is prevented from having an abortion in such a case, he said “such a situation cannot be the basis of the court’s decision in a facial challenge to the statute.”

One purpose of the bill was to prevent abortions when unborn children feel pain and the judge was sympathetic to the legislature’s intent, saying lawmakers cited “substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least 20 weeks gestational age.”

Quote from the court’s order (Isaacson v. Horne):

“Given the nature of D&Es and induction abortions…, and the finding that the unborn child has developed pain sensors all over its body by 20 weeks gestational age, this Court concludes that the State has shown a legitimate interest in limiting abortions past 20 weeks gestational age. Further, in promulgating H.B. 2036, Arizona expressed concerns for the health of the pregnant woman, finding that the instance of complications is highest after twenty weeks of gestation. This additional legitimate interest further supports H.B. 2036’s regulation on abortions after 20 weeks gestational age…. Based on the foregoing, the Court finds that Plaintiffs cannot succeed on the merits of their claim that H.B. 2036 is unconstitutional….”

Alliance Defending Freedom Senior Counsel Steven Aden talked with LifeNews about the initial ruling:

“Every innocent life deserves to be protected. That certainly includes the most vulnerable of all: children in the womb who experience horrific pain when being torn apart in the womb during a late-term abortion like those this law prohibits. This law also protects mothers from dangerous late-term abortions and their tremendous psychological consequences. The ACLU and the Center for Reproductive Rights, who filed this lawsuit, apparently don’t care about any of that, preferring to pursue their own agenda. The court was right to thwart their attempts to stop this law.”

The Center for Arizona Policy helped draft HB 2036, known as the Mother’s Health and Safety Act, and testified in support of the bill and complained when the ACLU sued.

“Once again, we see supposed ‘pro-woman’ organizations fight to protect abortion-on-demand despite the serious risks abortion presents to new moms,” said Cathi Herrod, President of Center for Arizona Policy. “The medical evidence presented during committee hearings make it clear that abortions after 20 weeks present a much greater risk to the life of the women. There is also substantial medical evidence that preborn children can feel pain at this age.”

“Center for Arizona Policy is committed to seeing this law take effect. Americans support common sense standards that protect women from the dangerous practices of the abortion industry,” Herrod said.



This bill, called “The Mother’s Health and Safety Act”:

  • Prohibits abortion after 20 weeks because of the safety risks to the mother and the pain endured by the preborn child
  • Ensures women have an ultrasound at least 24 hours prior to an abortion
  • Establishes an informed consent website which details the facts about fetal development, risks of abortion, and services available.
  • Requires doctors performing surgical abortions to have admitting privileges at a hospital within thirty miles of the abortion facility.

Arizona Right to Life was also supportive of the legislation.

Sen. Nancy Barto, R-Phoenix, was the main sponsor of HB 2036 and she cited testimony of a doctor who said that a 20-week fetus has sensory receptors all over its body. She also said there is evidence that the later along a pregnancy, the greater the chance of complications for the mother.