Arizona's ban on abortions at 20 weeks is dead.
In a brief order, the U.S. Supreme Court on Monday refused to disturb an appellate court ruling which 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 leaves in place existing court decisions which say that states cannot interfere with the right of a woman to terminate her pregnancy any time prior to viability. Even Montgomery conceded that does not occur until at least the 23rd or 24th week.
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. Herrod said that creates the opportunity for review by federal appellate courts there — courts outside the jurisdiction of the 9th Circuit and its precedent.
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 preborn 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 who challenged the law, conceded that a decision by the Supreme Court not to review a lower court decision sets no legal precedent. But she said that it does leave in place some very strong language from the 9th Circuit judges, language she said reaffirms precedents going back all the way to the historic 1973 ruling of Roe v. Wade which first said women have a constitutional right to terminate a pregnancy.
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 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.
He cited testimony to the Legislature — 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.
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 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.”
Creps said Monday's ruling honors the earlier precedents set by the court.
“The Supreme Court has 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,” she said.
Montgomery conceded that getting an enforceable ban on abortion at 20 weeks — or any point earlier _ likely will require the justices to jettison the precedents they have set. But he said they have done that before.
He cited a ruling last year scrapping a provision of the Voting Rights Act which required some states, including Arizona, to have changes in election laws “precleared” by the U.S. Department of Justice. Montgomery said the justices concluded they now have “new evidence” that convinced them the requirement, which had been previously upheld, was no longer necessary.
Monday's ruling comes as Herrod's organization, which has been at the forefront of abortion restrictions in Arizona, was preparing to ask state legislators to enact even more limits. She said the Supreme Court order upholding the 9th Circuit ruling “will all factor into what can Arizona do next in this area.”
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.