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Roberts Court Asked to Review Arizona’s Pre-Viability Abortion Ban

Jessica Mason Pieklo

If the Supreme Court takes up the challenge to Arizona's 20-week abortion ban, it could mean a direct shot to Roe v. Wade.

On Friday, the State of Arizona asked the Supreme Court to review a federal appeals court decision declaring unconstitutional an Arizona law that bans pre-viability abortions, in direct challenge to Roe v. Wade.

Passed last year, Arizona’s HB 2036 bans all abortions at 20 weeks after a woman’s last menstrual period, with only a very narrow exception for cases when a woman is experiencing a dire and possibly life-threatening emergency. In July 2012, the Center for Reproductive Rights (CRR) and the American Civil Liberties Union (ACLU) sued to block the law, which had been scheduled to take effect on August 2, 2012, arguing the Arizona law violates the U.S. Constitution by banning abortions pre-viability. But a federal district court judge denied their request to temporarily block the law, ruling that because HB 2036 contained this narrow exception, it was really a “regulation” and not a pre-viability “ban”—and therefore constitutional.

The CRR and ACLU appealed, and in May the Ninth Circuit Court of Appeals reversed, permanently blocking the law and issuing a forceful ruling on reaffirming the central holding of Roe v. Wade, which dictates that states may not interfere with a woman’s right to choose abortion pre-viability. “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.”

The petition for review, filed by Maricopa County Attorney Bill Montgomery, who also defended the law before the Ninth Circuit, was largely expected. That’s because proponents of the law, like Montgomery and Arizona Attorney General Tom Horne, have made clear the measure is designed to provoke a direct challenge to Roe v. Wade, by arguing a state’s right to ban abortions prior to fetal viability trumps a person’s fundamental right to be free from government-forced birth.

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To that point, the Arizona law and the Ninth Circuit’s opinion gets to the heart of the anti-choice movement’s drive to reverse Roe. Supporters of the Arizona law had argued at both the district court and the appellate court that courts are not bound to consider viability as the point at which to determine whether or not a state can pass a restriction that creates an undue burden on the right to choose. In other words, the central holding of Roe—that fetal viability is the point at which a state can begin enacting all-out bans—is what anti-choice activist are targeting and asking the Roberts Court to take up.

No schedule for review of the petition is set yet. But, should the Roberts Court decide to take up the request, it is possible it could hear the challenge this term.

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