When U.S. District Judge James Teilborg declared on Monday that HB 2036, an Arizona law making it a felony to have an abortion after 20 weeks gestation, did not present constitutional challenges, he wasn’t simply setting precedent for the first legal challenge to bans on abortion prior to viability that are based on the false claim that a fetus can feel pain.
Instead, Teilborg managed to upend the entire system for legally establishing abortion restrictions, and presented anti-choice legislators and legal activists a perfect opening to overturn Roe V. Wade.
At the center of Teilborg’s refusal to enjoin Arizona’s 20-week gestation abortion ban is the precedent set by Planned Parenthood v. Casey and its progeny. In that case, Justice Anthony Kennedy ruled that a state has a right to limit all abortions prior to viability, as long as restrictions did not present an “undue burden” for a woman seeking to terminate a pregnancy. What exactly constitutes an undue burden? Well, that’s an endless definition that no court has yet seemed to find. Mississippi came closest when a federal judge chose not to allow the state to criminally penalize providers who could not meet the requirements of the new TRAP law, as it would have effectively outlawed abortions in the state. But rather than rule the law itself an “undue burden” because it would have forced women to leave the state to terminate a pregnancy, the judge instead opted for a work-around to prevent any actual legal precedent to be set on either side of the debate.
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Meanwhile, Judge Teilborg has taken the lessons of Casey and reassembled them to reflect his own–and the Arizona legislature’s–version of “facts.” Sadly, this is a practice not only endorsed by the Supreme Court thanks to the 2000 decision in Gonzales v. Carhart, it is a practice outwardly encouraged as a means of insulating legislation from judicial override.
In his decision, Teilborg ruled that as a “pre-viability” ban, HB 2036 fell under the Casey decision as limiting abortion prior to the point where a fetus can survive outside the woman’s womb without assistance. On this point the precedent seemed clear–any restriction that attempted to ban an abortion prior to viability would present an undue burden on a woman’s constitutional rights. But, that’s not what Teilborg ruled.
Instead, he argued, banning abortions pre-viability did not constitute an undue burden since a small number of women would be effected by it. To make this outlandish claim Teilborg relied on another abortion-rights restricting decision from the Roberts Court, Ayotte v. Planned Parenthood, a 2006 decision that refused to strike down a New Hampshire parental notice law on its face because only a few applications of the law would present a constitutional problem. Since the number of abortions between 20 weeks-to-viability are small, Teilborg reasoned, then any “ban” that happens as a result of HB 2036 is constitutional by virtue of the fact that only a small number of women’s lives will be adversely afected by the law.
Besides, if they didn’t want to have a baby, Teilborg argued, they should just get an abortion before the time limit.
Furthermore, Teilborg argued, the Arizona law is not so much a ban on abortions pre-viability, but a state regulation on when those abortions can take place. It’s tortured logic built upon science fiction and represents more evidence of a sea change within the federal judiciary on the issue of abortion rights.
What Teilborg fails to recognize is that many of the women affected are those who have wanted pregnancies. These women may be carrying a non-viable fetus that will not survive either pregnancy or childbirth or a fetus with a terminal condition destined to die in agony shortly after birth, or they may be facing a pregnancy-related medical emergency that will adversely affect the woman’s own health or life.
According to Dr. Paul Isaacson, who testified against the ban during legislative review and who later became one of the plaintiffs in the lawsuit:
The substantial majority of our patients to who seek terminations at 20 weeks or greater do so because they have received a diagnosis of a severe fetal anomaly during the course of a wanted pregnancy… most of these patients will be past 20 weeks before the fetal abnormality will even be diagnosed. For such women, this bill would force them to carry the pregnancy to term, often at substantial health risks to themselves.
Being forced to carry a pregnancy to term for any reason, especially as far right legislatures erect an increasing number of obstacles even to very early abortion, is an undue burden on a woman’s life. But for women facing medical conditions, being forced to carry a medically dangerous or unviable pregnancy clearly is an undue burden by posing immediate risks to their health and lives. However, since they are being considered not on their own, but as a fraction of all women who terminate a pregnancy, Teilborg rules that they aren’t a large enough section of the population to reject the law as a whole.
The ruling itself is unconscionable, as it lumps all abortions together, rejecting the many different factors that go into women’s decisions to terminate pregnancies at whatever point in the pregnancy they come to that decision.
Inherently, Teilborg is using his position to declare that all terminations are “wrong,” so if a woman is going to make the “wrong” decision she has plenty of time to do so before the 20-week gestation ban goes into effect. As the Associated Press reported:
“U.S. District Judge James Teilborg said the statute may prompt a few pregnant women who are considering abortion to make the decision earlier. But he said the law is constitutional because it doesn’t prohibit any women from making the decision to end their pregnancies.”
With that statement, Teilborg has effectively rejected the standards under Roe, ignoring the traditional legal division between pre and post-viability and exchanging it for a dangerous precedent that instead re-sets the point in which the state’s right to support the life of the fetus outweighs the woman’s right to bodily autonomy as much as six weeks prior.
Teilborg’s ruling isn’t just radical for its rejection of the traditional legal line of viability, but in its obvious interest in setting the discredited argument of “fetal pain” as a public interest. Despite findings by the Royal College of Obstetricians and Gynaecologists and a systematic review in the Journals of the American Medical Association stating fetuses are incapable of feeling pain in the womb at 20 weeks, Teilborg has ruled that the state provided “substantial and well-documented” evidence to claim otherwise. By then using the much refuted science as a basis for his decision, the judge allows that “evidence” to be given the same weight as actual medical science, while also setting a precedent for a judgment down the road for alleged “fetal pain” as a new line of legal interest and protection. It is a line that anti-choice supporters are eager to see created, intending later to offer more “scientific proof” that pain can be felt even earlier, and abortion outlawed even earlier.
With all of these issues in mind, it is no surprise that both the American Civil Liberties Unions and The Center for Reproductive Rights are seeking a new emergency injunction from the 9th Circuit Court of Appeals. A traditionally more liberal and evidence-based court is likely to react to the dangers in precedent that Teilborg’s ruling provokes, and restrain the law while legal reviews continue. But in the meantime, anti-choice activists have already gotten the victory they desperately wanted: case law on the books that they can now use to pull down Roe altogether.
Robin Marty and Jessica Mason Pieklo are authoring a book on potential constitutional challenges to Roe v. Wade which will be published in Spring 2013.