Next month the Ninth Circuit Court of Appeals will hear arguments on the constitutionality of Arizona’s 20-week abortion ban. A district court upheld the ban earlier this year but in August a three-judge panel barred the state from enforcing it until the appellate court could consider its constitutionality. And as expected the case is being teed up as a challenge to Roe v. Wade. What’s even more interesting is just how that challenge may unfold.
In briefs in support of the ban, its chief defender, Maricopa County Attorney Bill Montgomery, makes the argument that states constitutionally can and should regulate abortions pre-viability, despite the fact that both Roe v. Wade and later Planned Parenthood v. Casey state that viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify bans on nontherapeutic abortions.
According to Montgomery, both Roe and Casey assumed the comparative safety of abortion over childbirth, and neither case had the “benefit” of the “science” that supports so-called fetal pain bans. Because science has changed and the court has moved away from viability as a bright-line test for banning abortions in favor of the looser “undue burden” standard, Montgomery argues, Arizona’s pre-viabilty ban not only meets the state’s legitimate interest in protecting fetal life, it amounts to nothing more than a regulation of pre-viability bans since the law provides for an emergency exception for maternal life and health.
In support of his claims that science is on the side of the anti-choice movement Montgomery cites the legislative findings of fact passed by the Arizona legislature in support of the ban and the Robert Court’s decision in Gonzales v. Carhart, the case that famously upheld the federal Partial Birth Abortion Ban, a law itself grounded in advocacy masquerading as science. In that decision Justice Anthony Kennedy instructed federal courts to give legislative findings like the ones cited by Montgomery in his brief wide deference, even in matters where the scientific conclusions are in dispute. Anti-choice activists have taken this as an invitation to create “evidence” and “science” to support otherwise unconstitutional abrotion restrictions, just like the Arizona ban.
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What is unfolding is not the direct debate about a woman’s right to terminate a pregnancy, but a proxy debate on whether anti-choice science supports that right. The Ninth Circuit Court of Appeals may not agree with Montgomery’s framing on this issue, but Justice Kennedy and the conservative majority on the Roberts court seem to. And that is who Montgomery’s brief was really targeting.