Appeals Court Strikes Down Arizona Law Banning Abortions at 20 Weeks

National   Steven Ertelt   May 21, 2013   |   2:41PM    Washington, DC

After a federal judge upheld an Arizona law that bans abortions after 20 weeks of pregnancy, one of the most liberal appeals courts in the nation has struck is down.

In July 2012, a federal judge in Arizona  issued a ruling upholding that state’s new law that goes into effect on Thursday and bans abortions after 20 weeks of pregnancy.

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.

Now, the 9th U.S. Circuit Court of Appeals ruled that the law violates U.S. Supreme Court rulings on abortion, including Roe v. Wade. The ruling does not affect similar laws passed in other states except the law in Idaho, which is also covered under the jurisdiction of the appeals court.

Ruling Link: Isaacson v. Horne, No. 12-16670 (9th Circuit)

From the decision: “The panel reversed the district court’s order denying declaratory and injunctive relief to plaintiffs and held that the Constitution does not permit the Arizona legislature to prohibit abortion beginning at twenty weeks gestation, before the fetus is viable.”

It added: “The panel held that under controlling Supreme Court precedent, Arizona may not deprive a woman of the choice to terminate her pregnancy at any point prior to viability. The panel held that Arizona House Bill 2036, enacted in April 2012, effects such a deprivation by prohibiting abortion from twenty weeks gestational age through fetal viability. The panel held that the twenty-week law is therefore unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe v. Wade, 410 U.S. 113 (1973), and ending with Gonzales v. Carhart, 550 U.S. 124 (2007).”

Pro-abortion groups cheered the ruling against the bill stopping late-term abortions.

“Today’s decision is a huge victory in the fight to protect women’s fundamental reproductive rights, and it should send a clear message to anti-choice politicians that their attempts to deprive pregnant women of critical health care are clearly unconstitutional and will not hold up in court,” said Sally Northup, president of the Center for Reproductive Rights.

Cathi Herrod, president of Center for Arizona Policy told LifeNews she is not surprised.

“This ruling is not surprising nor am I discouraged at the prospects of this important law ultimately being upheld,” she said. “The Ninth Circuit Court is historically one of the most overturned appellate courts in the nation. Based on the facts of this case, I am confident that this Court will be overturned once again.”

“The Court put a pro-abortion ideology before the health and safety of women and preborn children. The Court held to the vague standard that abortions can only be limited based on whether the child is viable, even though they confessed viability is not a “fixed” point,” said Herrod. “Ultimately, as we’ve anticipated from the beginning, this case should be decided by the United States Supreme Court. Sadly, until that time, women and preborn children will suffer the consequences of this disappointing decision.”

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.”

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.