The Supreme Court cleared the way Monday for an Arizona abortion ban to be struck down, but the decision does not immediately impact other states that also seek to prohibit most abortions after 20 weeks of pregnancy.
The high court let stand a ruling by the 9th Circuit Court of Appeals, which said Arizona law H.B. 2036 was unconstitutional, due to a woman’s right to have an abortion of a nonviable fetus.
Viability is generally calculated around 24 weeks after a woman’s last menstrual period.
The Arizona law, enacted in 2012, prohibited most abortions 20 weeks from the last menstrual period, or 18 weeks postfertilization, which is a shorter timeframe than other, similar laws. The Arizona law was crafted to prevent abortions at a time when a fetus might be able to feel pain, and also out of concern that women’s health risks rise during second- and third-trimester abortions.
Andrew Wilder, spokesman for Arizona Gov. Janice K. Brewer, said Monday that the high court’s decision not to hear the case was “a clear infringement on the authority of states to implement critical life-affirming laws.”
Mrs. Brewer’s administration “will continue to fight to protect Arizona women, families and our most vulnerable population — unborn children,” Mr. Wilder said.
Pro-choice supporters in Arizona and the nation hailed the decision not to hear Horne v. Isaacson.
It ensures that Arizona women’s lives and health will not be harmed by this “callous and unconstitutional law,” said Nancy Northup, president and chief executive of the Center for Reproductive Rights. Attorneys with the center and American Civil Liberties Union were among those representing Dr. Paul A. Isaacson and two other Arizona abortion providers who sued to stop the law.
“This is a significant victory for Arizona women,” said Bryan Howard, president and chief executive of Planned Parenthood Arizona. “Politicians in Arizona and in the other 49 states should take note — dangerous and unconstitutional restrictions on safe and legal abortion will not pass muster in the courts — or with the public,” he said.
Pro-life supporters countered that the 9th Circuit’s ruling only applies to the nine states in its Western region — and only to Arizona’s unique law.
The decision to let the appellate-court decision stand “has no impact” on laws in 10 other states that prohibit abortions on 20-week-old fetuses that are capable of feeling pain, said Mary Spaulding Balch, director of state legislation at the National Right to Life Committee.
“We believe the ruling is limited to the facts of this case,” Mr. Wilder said.
“States outside the Ninth Circuit can and should enact 20-week limits to protect unborn life and protect women’s health,” Clarke D. Forsythe, senior counsel for Americans United for Life, wrote on National Review Online. At least 14 other states have 20-week abortion laws “on the books,” he said. Many of these laws “are in force, and many have not been challenged in court.”
According to Guttmacher Institute, at least 23 states have enacted laws banning most abortions past a specific point in pregnancy — typically 20 weeks or more postfertilization.
Laws in Idaho and Georgia are currently blocked by courts. The nation’s most restrictive laws — those in North Dakota and Arkansas that block most abortions once a fetal heartbeat can be detected — are also enjoined by courts.
The House of Representatives already passed a bill to disallow most abortions 20 weeks postfertilization, and Sen. Lindsey Graham, South Carolina Republican, and 40 co-sponsors have introduced a similar “Pain-Capable Unborn Child Protection Act” in their chamber.
The 9th Circuit decided the Horne case on the viability argument, but was clearly unpersuaded by the fetal-pain argument. Instead, the court cited a brief from the American College of Obstetricians and Gynecologists, which said the earliest a fetus is likely to experience pain is at 29 weeks, or postviability.
Steven H. Aden of Alliance Defending Freedom lamented Monday’s news, saying, “New medical knowledge about the pain children can experience in the womb and the potential harms to women shouldn’t be ignored in any civilized society.”
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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