News Law and Policy

Federal Appeals Court Permanently Blocks Arizona 20-Week Abortion Ban

Jessica Mason Pieklo

A panel of judges sent a strong message to state legislatures that abortion rights matter.

On Tuesday a panel of judges of the U.S. Ninth Circuit Court of Appeals permanently struck down an Arizona law banning all abortions at 20 weeks, calling the extreme measure “unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe and ending with Gonzales.

The state law, which had been scheduled to take effect on August 2, 2012, would have banned all abortions at 20 weeks after a woman’s last menstrual period (LMP) without any exceptions for a pregnant woman’s life or health unless she is experiencing a dire and possibly life-threatening emergency. The law, HB 2036, would have banned abortion earlier in a pregnancy than similar laws recently enacted across the country and at a critical point when many women undergo prenatal testing to evaluate their own health and the status of their pregnancy.

The Center for Reproductive Rights (CRR) and the American Civil Liberties Union (ACLU) filed a lawsuit, Paul A. Isaacson, M.D. v. Tom Horne, Attorney General of Arizona, in July 2012 in the U.S. District Court of Arizona, on behalf of three physicians who perform abortions and serve women with high-risk pregnancies—arguing that the Arizona law violates the U.S. Constitution by banning pre-viability abortions. After a federal district court judge denied a request to temporarily block the law and issued a final ruling upholding the statute, CRR and ACLU appealed to the Ninth Circuit Court of Appeals, which immediately blocked the law from taking effect while it deliberated the appeal of the District Court’s decision.

The opinion that followed was a forceful reaffirmation of a woman’s right to control her pregnancy pre-viability. The 44-page order repudiates much of the reasoning used by U.S. District Judge James Teilborg in originally ruling the law constitutional, including his parsing of the difference between a “ban” and a “regulation” and his assertion that because some pre-viability abortions would theoretically remain available under the law that it did not violate Roe. “The challenged Arizona statute’s medical emergency exception does not transform the law from a prohibition on abortion into a regulation of abortion procedure,” the opinion states. “Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term. Moreover, regulations involve limitations as to the mode and manner of abortion, not preclusions of the choice to terminate a pregnancy altogether.”

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Importantly, the Ninth Circuit rejected outright the argument that the federal courts are not bound to consider viability as the point at which to determine whether a state can pass a restriction that creates an undue burden on a woman’s right to choose. In other words, one of the goals of the Arizona ban was to test the strength of viability as a cut-off point in banning, or severely restricting, access to abortions. This is important as anti-abortion activists pursue increasingly restrictive laws on abortion access based on blurring science on issues like so-called fetal pain as is the case here.

But, in this ruling, the Ninth Circuit said clearly that pre-viability bans run contrary to precedent and are unconstitutional. “Roe identified fetal viability as the earliest point in the pregnancy when the state’s interest becomes sufficiently compelling to justify not just regulation of the abortion procedure, but proscription of abortion unless necessary to preserve the life or health of the mother,” the court wrote. “Since Roe, the Supreme Court and lower federal courts have repeated over and over again that viability remains the fulcrum of balance between a pregnant woman’s right to control her body and the state’s interest in preventing her from undergoing an abortion.”

On the issue of whether or not Arizona’s pre-viability ban would survive because of its narrow exception for the life and health of the pregnant woman, the court forcefully disagreed. “The presence of a medical exception does not make an otherwise impermissible prohibition constitutional. The adequacy of the medical exception has no bearing on whether the prohibition is permissible in the first place. The twenty-week law is unconstitutional because it bans abortion at a pre-viability stage of pregnancy; no health exception, no matter how broad, could save it.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, said the following in a statement: “Today’s decision is a huge victory in the fight to protect women’s fundamental reproductive rights, and it should send a clear message to anti-choice politicians that their attempts to deprive pregnant women of critical health care are clearly unconstitutional and will not hold up in court.”

Attorneys for the ACLU who were also involved in the legal challenged were similarly pleased with the ruling. “We’re glad the court has reaffirmed that states cannot place unlawful burdens on a woman’s right to access safe reproductive health care,” said Talcott Camp, deputy director of the ACLU Reproductive Freedom Project. “Politicians do not have the right to interfere in serious and personal decisions that should only be made by a woman with the help of her family and her doctor. The ban would have forced a physician caring for a woman with a high-risk pregnancy to wait until her condition poses an immediate threat of death or major medical damage before offering her the care she needs. The ban also contained no exceptions for a woman who learns her fetus will not survive after birth.”

“Lawmakers cannot impose their personal ideologies on the women of Arizona,” said Dan Pochoda, legal director with the ACLU of Arizona. “This law endangered women’s health and was knowingly passed by the Arizona legislature despite clearly violating established constitutional requirements.”

This is the second opinion from the Ninth Circuit to unequivocally support abortion rights. Last year the Ninth Circuit Court of Appeals ruled states can’t prosecute pregnant women for “self-abortion” in the cask of Jenni Lynn McCormack who purchased medication online to terminate her pregnancy.

The ruling is not binding nationally, but covers the states of Arizona, California, Nevada, Hawaii, Oregon, Washington, Idaho, and Montana. And since supporters of the measure, including Arizona Attorney General Tom Horne, have made it clear the law is designed specifically to prompt the Supreme Court to take up and reverse Roe v. Wade, there’s every reason to believe supporters will appeal the ruling. In the meantime, though, the decision represents a significant victory for women, doctors, and public health and a defeat for those legislating religious extremism under the pretense of “protecting” women.

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

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Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (D-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

CORRECTION: A previous version of this article included a typo that misidentified Sen. Tim Kaine as a Republican. We regret this error.