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Can states ban abortions at earlier stages?

In a wave of new laws enacted across the country, foes of abortion are pushing a common goal:  to ban the termination of pregnancy at earlier stages than the Supreme Court has previously allowed.  The first new case seeking to test whether the Court will go along with that campaign has been filed, and could be faced by the Justices later this year.  A response to that case by abortion supporters is now due on November 29.

The new case, Horne v. Isaacson (docket 13-402), is from Arizona, and the 2012 law at stake would prohibit a woman from having an abortion at twenty weeks or later in pregnancy — three or four weeks before the commonly accepted point at which a fetus could survive if born alive (that is, the point of fetal “viability”).  The Court has never allowed a ban on the woman’s choice to seek an abortion before her fetus was viable, and that line has held since 1973, when the decision in Roe v. Wade first recognized a constitutional right to end a pregnancy.

The new Arizona case, though, is an attempt to test how firm that constitutional line is.  The basic argument the law’s supporters have made is that the twenty-week line in the Arizona law is designed to fit into a space allowed by the Supreme Court, between banning abortion and regulating abortion methods.

The state law is not a total ban, the argument goes, because abortions after twenty weeks are allowed if the doctor finds it necessary to prevent death or a grave health emergency.  And, the law’s backers say, it is a regulation of abortion because the aim is to protect fetuses from feeling pain, which they are said to do before twenty weeks, and to protect women’s health because “late-term” abortions are hazardous to their health.

In the Supreme Court’s most recent ruling on an abortion method, in Gonzales v. Carhart in 2007, the Court majority relied upon that very distinction as it upheld a federal ban on the method known as a “partial-birth abortion.”  There, the Court repeated its view that states may not flatly ban all abortions before fetal viability, but also declared that states have a legitimate interest in regulating abortion throughout pregnancy in ways that show respect for the unborn fetus as a potential human being.

When the Arizona law was struck down by the Ninth Circuit, however, it treated it as a flat ban after twenty weeks, and not a regulation.  So far as the pregnant woman is concerned, the court of appeals said, she cannot on her own choose to have an abortion at twenty weeks or later, because only a doctor can determine that there is a medical emergency sufficiently threatening to allow termination of the pregnancy.  It is the woman’s right to have an abortion, the Ninth Circuit said, that the Supreme Court has protected up to the point of fetal viability.

“Arizona’s twenty-week law deprives women of the right to choose abortion at all after twenty weeks gestation,” the Ninth Circuit said. The law “operates as a ban on pre-viability abortion and…it cannot stand under the viability rule enunciated repeatedly by the Supreme Court, this circuit, and other circuits.”

Unlike the “partial-birth abortion” ban that the Supreme Court upheld in 2007, the court of appeals said, Arizona’s law “does not just restrict a women’s right to choose a particular method of terminating her pregnancy before viability, it eliminates a women’s right to choose abortion itself….Only a physician can elect to perform an abortion from twenty weeks.”

Since Arizona already had a law banning abortions after fetal viability, the Ninth Circuit said, “the principal effect, and, necessarily, the primary intent, of the challenged statute is to prohibit pre-viability abortions at and after twenty weeks.”

The Ninth Circuit’s three-judge panel was unanimous in striking down the law.  In a separate opinion, Senior Circuit Judge Andrew J. Kleinfeld reluctantly went along with the result, commenting: “The question for us is whether the current state of constitutional law prohibits the states from imposing that restriction [on abortion at twenty weeks].  It does.”

In the state officials’ petition defending the law and urging the Supreme Court to uphold it, they both argue that the current state of the law does support the law’s validity, and also that, if it does not, then the Justices should reconsider prior abortion rulings “in the light of recent, compelling evidence of fetal pain and significantly increased health risk to the mother for abortions performed after twenty weeks gestational age.”

The argument that states have a strong interest in protecting fetuses against the pain of being aborted is one that has been employed by a number of state legislatures who have passed bans on abortion at twenty weeks.  Those are based on claims, recited in Arizona’s petition, that fetuses feel pain as early as sixteen weeks into pregnancy.

When the Supreme Court decided Roe v. Wade forty years ago, the state officials noted, the Justices conceded that human understanding did not explain when life begins.   “More recent scientific advances in the fields of fetal development, neurobiology, perinatology, and human genetics,” the petition said, “have demonstrated beyond peradventure that the fetus — the ‘unborn child,’ to use this Court’s language in Gonzales — is a unique human being from the moment of his or her conception, not merely from the moment of ‘viability’ outside the womb.”

Quoting retired Justice Sandra Day O’Connor in a dissenting opinion in 1983, the petition said that “the viability line” had always been on a collision course with itself, for failing to give respect for the fact that a state has an interest throughout pregnancy in protecting potential human life.

The petition noted that, on the basis of new scientific learning, Arizona and twelve other states had now passed laws limiting access to abortions beyond twenty weeks, except when necessary to protect the woman’s life or to avert a serious health risk to her.  The scientific developments upon which those laws are based, the state officials contended, “provide ample predicate for distinguishing this Court’s prior abortion precedents.”

The Court will not act on the Arizona case until after the doctors who challenged the 2012 law have a chance to respond.  Under the current schedule, which could be lengthened, that response is due on November 29.   If the doctors answer by then or not long after that, the Court could still grant the case and decide it during the current Term.

The Court already has granted review of two abortion-related cases, but neither poses a direct challenge to the Court’s prior precedents on a woman’s right to choose.   Rather, those cases are about regulating anti-abortion demonstrations at clinics (McCullen v. Coakley) and the extent of state power to regulate abortion by uses of drugs rather than surgery (Cline v. Oklahoma Coalition for Reproductive Justice).

The McCullen case has not yet been scheduled for oral argument, but probably will be heard in January.  The Cline case will not move forward in the Court until after the Oklahoma Supreme Court answers questions submitted to it by the Justices about the scope of the state law at issue in the case.  There is no deadline for the state court to reply.

Recommended Citation: Lyle Denniston, Can states ban abortions at earlier stages?, SCOTUSblog (Oct. 24, 2013, 6:29 PM),