New York Times

Supremes Deny Cert to Arizona Abortion Restriction Case

January 14, 2014

WASHINGTON — The Supreme Court on Monday declined to hear an appeal from Arizona officials seeking to revive a state law that barred most abortions after 20 weeks of pregnancy. The justices offered no reasons for turning down the appeal, as is their custom.

The case concerned an Arizona law, enacted in 2012, that prohibits abortions, except in certain medical emergencies, when the fetus reaches 20 weeks gestation, dated from the woman’s last menstrual period. The law’s definition of medical emergency is narrow, encompassing conditions requiring an immediate abortion to avert a pregnant woman’s death or a “serious risk of substantial and irreversible impairment of a major bodily function.”

The sponsors of Arizona’s law claimed that fetuses can feel pain at 20 weeks, a prime argument among abortion opponents that has been disputed by major medical groups. The fate of similar bans in Georgia and Idaho is still tied up in legal battles. There is also litigation in states across the country over other abortion restrictions, like requiring doctors who perform abortions to have admitting privileges at hospitals and limiting coverage to abortion procedures in health plans or the use of medications to end pregnancies.

Seventy abortion restriction measures were enacted in 22 states last year, according to the Guttmacher Institute, a research organization.

“This is not a Supreme Court that is friendly toward abortion rights, and they have made it clear that they will look at and perhaps uphold at least some of these restrictions,” said Elizabeth Nash, the state issues manager at the institute. The outcome of the Arizona case, she added, is “by no means the end of the abortion debate in this court.”

In May, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that the Arizona law was unconstitutional “under a long line of invariant Supreme Court precedents,” starting with Roe v. Wade in 1973.

The core message of those decisions, the appeals court said, was that a woman has a constitutional right to end a pregnancy before the fetus is viable.

Gov. Jan Brewer of Arizona had signed the bill into law in April 2012. On Monday, her spokesman, Andrew Wilder, said that Governor Brewer had “championed to make Arizona one of the most pro-life states in the nation” and that the law was “consistent with her proud and proven track record as the most pro-life governor in Arizona.”

The Supreme Court’s decision not to hear the case, Mr. Wilder added, “is wrong, and is a clear infringement on the authority of states to implement critical life-affirming laws.”

Because the case rested on federal constitutional issues, putting the question before voters, as Albuquerque did in November, was not legally viable, said the Maricopa County attorney, Bill Montgomery, one of the law’s most ardent defenders. (The Albuquerque referendum, which sought to ban abortions at 20 weeks of fertilization, was defeated by a 10-point margin.)

Arizona officials conceded that the law covered abortions before fetal viability, currently about 24 weeks as measured from a woman’s last menstrual period. But they argued that the law did not amount to an outright ban, only to a permissible regulation, one they said was justified by the state’s interest in preventing fetal pain and the increased risk to women as their pregnancies progress. The appeals court rejected both arguments.

In the concurring opinion, Judge Andrew J. Kleinfeld questioned the constitutional significance of fetal viability, calling it “an odd rule, because viability changes as medicine changes.” Since the Roe decision, viability has dropped from about 28 weeks, he wrote, as doctors become able to save ever younger premature babies.

Judge Kleinfeld added: “Were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out.”

Arizona is one of 12 states that have tried to ban most abortions at 20 weeks based on the theory of fetal pain, according to the Guttmacher Institute. But the other states have set the threshold at 20 weeks after fertilization, about two weeks later in a pregnancy than Arizona’s cutoff, but still earlier than fetal viability. Such laws have been struck down in Georgia and Idaho but remain in effect in nine states where they have not been challenged in court.

In urging the court to hear the Arizona case, Horne v. Isaacson, No. 13-402, officials there told the justices that the small number of challenges was an effort by abortion rights advocates to make sure there was no split among the lower courts, a factor that often figures in the Supreme Court’s decision to hear a case.