PHOENIX — Arizona’s prohibition of abortions at 20 weeks is dead.
In a brief order, the U.S. Supreme Court on Monday refused to disturb an appellate court ruling that said the 2012 law is unconstitutional. The justices gave no reason for their decision.
“That’s it for us here in Arizona,” said Maricopa County Attorney Bill Montgomery, who was defending the law.
He said the ruling confirms early court findings that states cannot interfere with the right of a woman to terminate her pregnancy any time before fetus viability, which Montgomery conceded does not occur until at least the 23rd or 24th week.
But Cathi Herrod of the anti-abortion Center for Arizona Policy said Monday’s high-court action is not the end of the fight.
She said 10 states have virtually identical laws, creating the opportunity for review by other federal appellate courts beyond the jurisdiction of the 9th Circuit Court of Appeals.
Herrod said the Supreme Court will be forced to step in if another federal appellate court reaches a different conclusion.
“At some point, I have no doubt the Supreme Court will consider the humanity of the pre-born child and the risk of abortion to their mothers,” Herrod said. “In time, the 9th Circuit decision on the 20-week ban will be seen as an aberration in abortion jurisprudence.”
The high-court decision also drew derision from Gov. Jan Brewer, who signed the measure into law. In a prepared statement, she called it “a clear infringement on the authority of states to implement critical life-affirming laws.”
Janet Creps, the attorney for the Center for Reproductive Rights, which challenged the law, conceded a decision by the Supreme Court not to review a lower-court decision sets no legal precedent. But she said it does leave in place strong language from the 9th Circuit judges, which she said reaffirms precedents going back to the historic 1973 ruling of Roe v. Wade, which first said women have a constitutional right to abortion.
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 allowed were when it was necessary to prevent a woman’s death or “substantial and irreversible impairment of a major bodily function.”
Montgomery argued that Arizona lawmakers have a legitimate right to step in, citing testimony to the Legislature — disputed by some — that a fetus can feel pain at 20 weeks, and the increased risk to the mother after that point.
But 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 noted, “People are free to do many things to their health, such as surgery to improve their quality of life, but unnecessary to preserve life,” underwriting the woman’s right to make that decision.
Creps said Monday’s ruling upholds earlier precedents set by the court that have “said it’s for women to make these decisions, to decide how best to protect their own health, and how best to live a life of dignity and full participation in society.”
Monday’s ruling comes as Herrod’s organization, which has been at the forefront of pushing for abortion restrictions in Arizona, was preparing to ask state legislators to enact even more limits.
Herrod acknowledged that the ultimate goal of her organization is to have the procedure outlawed outright.
Sen. Kimberly Yee, R-Phoenix, who sponsored the 2012 law, said Monday’s action keeps in place “a dangerous and radical decision” from the 9th Circuit.