by Jim Nintzel
SCOTUSblog analyzes the U.S. Supreme Court's decision to let stand a lower court ruling blocking an Arizona law that would have banned nearly all abortions after 20 weeks:
The Court’s reaction to the new Arizona abortion case had been eagerly awaited, for two reasons: it was a test of whether the Court would relax its repeated view that states cannot flatly ban abortion in the period before a fetus could live outside the pregnant woman’s body, and it was a test of whether the Justices would clear the way for state legislatures to experiment with bans on abortions at increasingly earlier stages in pregnancy.
Because the Court chose not to review the case, nothing final can be read into that denial, except perhaps that the Court is not ready to reopen the whole question about the continuing validity of its precedents on women’s abortion rights. Lawyers for anti-abortion groups have been attempting to fashion arguments that they hoped would lead the Court to see that earlier-stage laws against pregnancy terminations were actually regulations of the procedure, not a total ban. State legislatures have been passing a series of new laws to move the ban earlier, making the same argument that this is only a form of regulating the procedure.
In the Arizona case, for example, the ban on abortions in the twentieth week or later was said to be a measure aimed at protecting fetuses from feeling pain during an abortion procedure, and at protecting women from the health risks of abortions in that part of their pregnancies. Those arguments did not succeed in this case, with the U.S. Court of Appeals for the Ninth Circuit striking down the 2012 state law, treating it as a flat ban that would interfere with a woman’s right to an abortion before the point of fetal viability—somewhere around twenty-four weeks of pregnancy.
Bryan Howard, President and CEO of Planned Parenthood Arizona, issues a statement:
This is a significant victory for Arizona women. This case represented a major threat to the right of women in Arizona and across the nation to make personal medical decisions that have been their constitutional right for more than 40 years.
The Court did the right thing today, but this dangerous and unconstitutional law should never have passed in the legislature in the first place."Politicians in Arizona and in the other 49 states should take note - dangerous and unconstitutional restrictions on safe and legal abortion will not pass muster in the courts - or with the public.
Arizonans don't want politicians to interfere in their personal health care decisions, but this extreme abortion ban would have done just that. It would have taken the personal decisions a woman makes in consultation with her doctor, family and faith out of her hands and into the hands of politicians, regardless of her situation or circumstance.
Cathi Herrod of the Center for Arizona Policy promises to push new anti-abortion legislation in response:
I am greatly troubled that the United States Supreme Court has declined to hear arguments in the case of Isaacson v. Horne, and in doing so has let a dangerous decision by the Ninth Circuit Court of Appeals stand.
The facts are clear: Abortion after 20 weeks of a pregnancy puts women’s lives at risk, and preborn children at this age can feel pain. This is why the Arizona Legislature and Governor Brewer enacted the Mother’s Health and Safety Act. It is also why ten states have laws in effect today that prohibit most abortions after 20 weeks. These laws have not been challenged by the abortion industry, yet the nation’s highest court has allowed an activist court decision to remain the law in our state.
Across the United States, pro-life laws are being passed to protect preborn children and their mothers at an unprecedented rate. No longer can the humanity of the preborn child nor the risks of abortion to women be overlooked or ignored.
At some point, the U.S. Supreme Court will hear a challenge to a law similar to Arizona’s law. I’m confident similar laws will eventually be upheld as constitutional. The Ninth Circuit decision will continue to be an aberration in abortion jurisprudence.
For now, in Arizona, we are already taking the next steps to protect women and their preborn children from the dangerous and deadly practices of the abortion industry. In the coming days we will be announcing new legislation to address this situation.
State Sen. Kimberly Yee, who sponsored the legislation, calls a federal appeal's court decision based on longstanding precedent "dangerous and radical":
By declining to take up the case of Horne v. Isaacson, the United States Supreme Court has put the health and safety of women and preborn children at risk.
I sponsored the Mother’s Health and Safety Act because there is overwhelming evidence that abortion after 20 weeks puts women in harm’s way. What’s more, by this age, preborn children can feel pain, and it is simply inhumane to subject them to an abortion.
Because the High Court decided not to take up this case, they allowed for a dangerous and radical decision from the Ninth Circuit Court of Appeals to stand that overturned this law.
It is a fundamental responsibility of government to protect life. Today, we’ve fallen short of fulfilling our duty. There is no doubt however that today’s announcement will not be the last word on this critical issue.
House Speaker Andy Tobin, who hopes to unseat Congresswoman Ann Kirkpatrick later this year, says he is "grief-stricken" by the Supreme Court's decision:
I am very much saddened and grief-stricken that the U.S. Supreme Court has declined to hear the lawsuit over Arizona’s law limiting abortions after 20 weeks. Consequently, late term abortions will continue to be performed in Arizona.
The evidence in the Isaacson v. Horne case is compelling, and warranted a review by the Court. My colleagues and I are convinced that abortions performed after 20 weeks are dangerous to women.
More than 13,000 abortions were performed in Arizona in 2012. Over a thousand of these procedures occurred after 20 weeks, a time at which a growing number in the scientific community believe that a fetus can feel pain. Moreover, the “viability standard” relied on in Roe vs. Wade is becoming more and more arbitrary and irrelevant as scientific research reveals ways to sustain the fetus during the second trimester of a pregnancy outside the womb. I hope the Supreme Court will one day soon take up the serious issues presented by this case.
I want to thank all my colleagues who work with dedication and perseverance to protect unborn children. Justice often comes tragically slow, but nevertheless, the House of Representatives will remain committed to making progress on this issue. I am confident that one day our country will again recognize the rights of the unborn and welcome every child into the world.