Arizona cannot enforce abortion ban, Supreme Court rules

2014-01-13T07:47:00Z 2014-01-13T11:14:00Z Arizona cannot enforce abortion ban, Supreme Court rulesBy Howard Fischer Capitol Media Services Arizona Daily Star
January 13, 2014 7:47 am  • 

PHOENIX — Arizona cannot enforce its ban on abortions at 20 weeks of pregnancies, the U.S. Supreme Court ruled this morning.

The justice rejected a bid by Maricopa County Attorney Bill Montgomery to review an appellate court ruling concluding the 2012 law is likely unconstitutional. The justices gave no reason for their decision in their brief order.

The Arizona law made it a crime for a doctor to perform an abortion on a woman who is beyond the 19th week of pregnancy. The only exceptions are when necessary to prevent a woman's death or "substantial and irreversible impairment of a major bodily function."

Last year, however, the 9th Circuit said the law is not enforceable. The judges said Supreme Court precedents have made it clear that women have an absolute right to terminate a pregnancy at any time prior to viability, something that does not occur until around the 23rd or 24th week.

Montgomery, however, contended Arizona lawmakers have a legitimate interest in stepping in.

He cited testimony — disputed by some — that a fetus can feel pain at 20 weeks. Montgomery also said the procedure has an increased risk to the mother after that point.

Appellate Judge Marsh Berzon, writing for the 9th Circuit, said all that is legally irrelevant.

"A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable," she wrote. "A prohibition on the exercise of that right is per se unconstitutional."

In a concurring opinion, Judge Andrew Kleinfeld brushed aside the measure's stated interest in protecting a woman's health as a reason to keep her from getting an abortion at or after 20 weeks.

"People are free to do many things to their health, such as surgery to improve their quality of life but unnecessary to preserve life," Kleinfeld wrote. "There appears to be no authority for making an exception to this general liberty regarding one's own health for abortion."

The ruling was cheered by Nancy Northup, president of the Center for Reproductive Rights, which represented several Arizona doctors who had challenged the law. She said the high court, by its action, affirmed the 9th Circuit's "sound decision that Arizona's abortion ban is clearly unconstitutional under long-standing precedent."

She also noted that the ruling likely had broader implications, as lawmakers in several other states have approved similar measures.

"Women should not be forced to run to court, year after year, in state after state, to protect their constitutional rights and access to critical health care," Northup said in a prepared statement.

But Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said in her own statement that she does not believe this is the last word on the issue.

"At some point the U.S. Supreme Court will hear a challenge to a law similar to Arizona's law," she said. "I'm confident similar laws will eventually be upheld as constitutional."

And Herrod called the 9th Circuit ruling "an aberration in abortion jurisprudence."

Herrod also signaled that her organization, which has been at the forefront of pushing lawmakers here to enact more restrictions on abortion, is not done yet.

"We are already taking the next steps to protect women and their pre-born children from the dangerous and deadly practices of the abortion industry," she said, promising details in the coming days.

But any new restrictions — particularly involving pre-viability abortions — could run up against the same problems and legal precedents.

Today's high court ruling also shows the justices were not interested in using this case to revisit — and potentially alter or even void — the historic 1973 precedent set in Roe v. Wade which first spelled out a right to terminate a pregnancy.

The Arizona law comes as close as anything brushing up against that ruling the court has recently considered.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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