Arizona Law Limiting Abortions Tossed Out

     (CN) — Arizona cannot ban women from aborting pre-viable fetuses, the 9th Circuit ruled Tuesday.
     The federal appeals court in San Francisco stuck down a controversial law passed last year that prohibited abortions in the state at or after 20 weeks, except in cases of a medical emergency.
     Because the law “deprives the women to whom it applies of the ultimate decision to terminate their pregnancies prior to fetal viability, it is unconstitutional under a long line of invariant Supreme Court precedents,” the three-judge appellate panel ruled.
     A healthy fetus generally becomes viable at around 23 to 24 weeks.
     After Arizona House Bill 2036 became law in April 2012, three doctors sued to stop it from going into effect. Paul Isaacson, William Clewell and Hugh Miller, with help from the ACLU of Arizona, won an emergency injunction , but lost a first round when U.S. District Judge James Teilborg rejected the claims that the ban would unconstitutionally strip women of their rights. Teilborg found, among other things, that the law was meant to regulate, rather than prohibit, abortion at and after 20 weeks because it included a medical emergency exception.
     The appellate panel disagreed completely.
     “Since Roe v. Wade, the Supreme Court case law concerning the constitutional protection accorded women with respect to the decision whether to undergo an abortion has been unalterably clear regarding one basic point, although it has varied in other respects: a woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable,” wrote Judge Marsha Berzon for the panel. “A prohibition on the exercise of that right is per se unconstitutional.
     While the state may regulate the mode and manner of abortion prior to fetal viability, it may not proscribe a woman from electing abortion, nor may it impose an undue burden on her choice through regulation.”
     Berzon added that the medical exception did not “transform the law from a prohibition on abortion into a regulation of abortion procedure.”
     “Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term,” she wrote. “Moreover, regulations involve limitations as to the mode and manner of abortion, not preclusion of the choice to terminate a pregnancy altogether. Arizona’s 20 week law is a preclusion prior to fetal viability and is thus invalid under binding Supreme Court precedent.”
     State legislators had justified the ban “based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.”
     In a concurrence in which Judge Andrew Kleinfeld appeared to be apologizing for following Supreme Court precedent, he pointed out that the state had “presented substantial medical evidence to support its legislative findings on both points.”
     “The very undeveloped record affords no basis for rejecting these propositions,” Kleinfeld wrote. “But they do not suffice to justify the statute in the current state of constitutional law. Were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out.”
     Kleinfeld lamented that viability remains the “‘critical fact’ that controls constitutionality,” because its definition “changes as medicine changes.”
     “The briefs make good arguments for why viability should not have the constitutional significance it does, but under controlling Supreme Court decisions, it does indeed have that significance,” he wrote.
     “And even though medical science for premature babies may advance to where they are viable three or four weeks earlier, Arizona does not claim that science has done so.”
     A spokesman for Arizona Governor Jan Brewer told Courthouse News that she is disappointed by the ruling. Brewer signed the bill into law last year.
     “The District Court got it right, and the 9th Circuit Court of Appeals got it very wrong today,” Matthew Benson wrote in an email. “As a strong defender of life and the unborn, Governor Brewer stands behind the action she took by signing this legislation into law. She is not a party to this case, but would be supportive of any efforts to appeal today’s misguided ruling.”
     Arizona Attorney General Tom Horne, who is a named defendant in the doctors’ complaint, said in a statement that he is still reviewing the decision and has not determined his next move.
     “That determination will take into consideration the vulnerability of the panel’s legal analysis, the possibility of convincing the 9th Circuit to rehear the case, and the likelihood of obtaining discretionary review in the United States Supreme Court.”

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