January 15, 2014 — Abortion-rights advocates say the Supreme Court's refusal to consider an Arizona law (HB 2036) banning most abortions after 20 weeks suggests the justices are not interested in revisiting Roe v. Wade, while abortion-rights opponents think the decision will build momentum for their cause, NPR's "It's All Politics" reports (Halloran/Rovner, "It's All Politics," NPR, 1/13).
The Supreme Court on Monday declined to hear an appeal of a lower court's ruling that the Arizona law is unconstitutional, meaning that the lower court's ruling invalidating the law will stand.
Arizona is one of several states that have passed similar laws, which are based on the medically refuted claim that fetuses can feel pain at 20 weeks of development (Women's Health Policy Report, 1/13).
Revisiting Viability Standard
If the justices had taken the case, they would have had to re-examine Roe's 40-year-old precedent of prohibiting states from banning abortion before fetal viability, considered to be about 24 weeks.
John Robertson, chair of the Ethics Committee of the American Society for Reproductive Medicine, said, "It would appear that the court is not ready or willing to deal with moving the viability line at this time." He added, "The science is weak, and it would be a major change."
However, Susan B. Anthony List President Marjorie Dannenfelser compared efforts to pass laws based on the fetal pain theory to the "crooked path" to passing a 2003 federal ban on a specific abortion procedure used late in pregnancy. She said, "Every single time there was a rejection, it actually built momentum toward the final goal of passage."
Many Laws Unchallenged
Dannenfelser and other abortion-rights opponents noted that lawsuits have not been filed against many states' 20-week bans, including those in Alabama, Indiana, Louisiana and Oklahoma.
Center for Reproductive Rights Director Nancy Northup explained that some of those states do not have providers that perform abortions after 20 weeks, "so there's no way to challenge them" because no one would have legal grounds to do so.
Dozens of other abortion-related lawsuits are making their way through the courts, she noted. "The Supreme Court is going to have the opportunity again and again and again this year and next year to see if they want to take a look again at their jurisprudence on abortion rights" ("It's All Politics," NPR, 1/13).
Ariz. Ruling Has No Immediate Effect on Neb. Law
In related news, supporters of a similar Nebraska law say the Supreme Court's decision could make the state's law more vulnerable to legal challenges, even though state Attorney General Jon Bruning (R) said the Arizona case has no immediate effect on the Nebraska statute, the Omaha World-Herald reports.
Julie Schmit-Albin, executive director of Nebraska Right to Life, said if the state's law should be challenged she believes the courts would take a different view than they did in Arizona, in part because Nebraska's law focuses solely on fetal pain, while the Arizona law was also based on protecting women's health.
However, Janet Crepps, a legal expert with CRR, said the decision by a federal appeals court to strike down the Arizona law “should be persuasive," even for states in other jurisdictions (Stoddard, Omaha World-Herald, 1/14).