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Appeals Court Strikes Down Ariz. 20-Week Abortion Ban as Unconstitutional

Appeals Court Strikes Down Ariz. 20-Week Abortion Ban as Unconstitutional

May 22, 2013 — A three-judge panel of the 9th U.S. Circuit Court of Appeals on Tuesday struck down an Arizona law (HB 2036) that bans abortions after 20 weeks from a woman's last menstrual period, ruling that the measure violates Supreme Court precedent prohibiting states from banning abortions prior to fetal viability, the New York Times reports (Santos, New York Times, 5/21).

The Arizona law provides for an exemption only when "immediate" termination of a pregnancy is required to avert a woman's death or risk of "substantial and irreversible impairment of a major bodily function." Physicians found to violate the law would face a misdemeanor charge and possible suspension or revocation of their licenses.

Arizona is one of several states that have enacted 20-week abortion bans in the past two years based on the medically disputed theory that a fetus can feel pain around that point (Women's Health Policy Report, 8/2/12). The Arizona law is the second, following Idaho's, to be struck down (New York Times, 5/21). A Georgia law has been enjoined from taking effect while another suit proceeds (Women's Health Policy Report, 1/3).

The Arizona law was set to take effect last August, but the three-judge panel put it on hold while the case proceeded.

Key Arguments

The suit -- filed by three Arizona physicians, the Center for Reproductive Rights and the American Civil Liberties Union -- argued that the law unconstitutionally limits women's access to abortion prior to viability (Women's Health Policy Report, 8/2/12).

The defendants -- including Arizona Attorney General Tom Horne (R), Maricopa County Attorney Bill Montgomery, Pima County Attorney Barbara LaWall and the Arizona Medical Board had argued that the law's purpose was to protect women's health and shield fetuses from pain (New York Times, 5/21).

The defense also contended that the law's provision allowing abortion in the case of medical emergencies made it a medical regulation, rather than a law (Elias, AP/Miami Herald, 5/21).

Judges' Opinion

Judge Marsha Berzon, who authored the opinion for the court, wrote that the law is unconstitutional "under a long line of invariant Supreme Court precedents" that ensure a woman's right to an abortion prior to the fetus' viability, which is generally about 24 weeks.

"While the state may regulate the model 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," she said (New York Times, 5/21).

Berzon pointedly rejected the defense's argument about the exception for medical emergencies, writing that the provision "does not transform the law from a prohibition on abortion into a regulation of abortion procedure." She added, "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" (AP/Miami Herald, 5/21).

Judge Andrew Kleinfeld joined Berzon in her opinion. The third judge -- Mary Schroeder -- concurred but wrote a separate opinion (Jones, Wall Street Journal, 5/21).


Montgomery said the defense would "seek review from the United States Supreme Court," adding that if "the 9th Circuit cannot permit Arizona to act because of Supreme Court precedent, then the Supreme Court must change that precedent" (AP/Miami Herald, 5/21).

Horne said in a statement that he was reviewing the decision and had not yet decided on the next steps.

CRR President Nancy Northup in a statement said the court's decision "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" (Wall Street Journal, 5/21).

Dan Pochoda -- legal director of ACLU of Arizona -- called the decision the "strongest and most definitive" of recent rulings on state abortion restrictions (New York Times, 5/21).