With myriad new state laws restricting abortion in the earliest weeks of gestation, Tuesday's ruling by the 9th U.S. Circuit Court of Appeals striking down Arizona's 2012 20-week abortion law will most certainly force the Supreme Court to hear the case and thus "open Pandora's box."
For background, read details of the Arizona law and the previous lower court ruling.
In addition, read Pro-lifers Prevail: More Abortion Restriction Laws and also read Pro-life Legislation Floods America as well as Eroding Roe v. Wade State-by-state
-- From "Arizona abortion ban struck down" by The Associated Press 5/21/13
A three-judge panel of the court said the law violated a woman's constitutionally protected right to terminate a pregnancy before a fetus can survive outside the womb. "Viability" is generally considered to begin at 24 weeks. Normal pregnancies run about 40 weeks.
Nine other states have enacted similar bans at 20 weeks or even earlier. Several bans have been placed on hold or struck down by other courts.
Judge Marsha S. Berzon, writing for the unanimous three-judge panel of the San Francisco-based court, said such bans before viability violated a long string of U.S. Supreme Court rulings starting with the seminal Roe vs. Wade decision in 1973.
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From "Appeals court: Arizona abortion restriction unconstitutional" by Howard Fischer Capitol Media Services 5/21/13
In a unanimous decision, the 9th Circuit Court of Appeals acknowledged that the law on what states can and cannot restrict have varied since the landmark 1973 case of Roe v. Wade. That ruling barred states from banning a woman's right to terminate her pregnancy, at least during the first trimester.
Berzon said states can regulate the mode and manner of terminating a pregnancy prior to viability — but not more.
"It may not proscribe a woman from electing abortion, nor may it impose an undue burden on her choice through regulation,” she wrote.
But it is not likely the last word. Maricopa County Attorney Bill Montgomery, who personally argued the case to the appellate court, has said he sees the law as a chance to have the whole issue revisited by the U.S. Supreme Court.
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From "Arizona Law Limiting Abortions Tossed Out" by Tim Hull, Courthouse News Service 5/21/13
After Arizona House Bill 2036 became law in April 2012, three doctors sued to stop it from going into effect. Paul Isaacson, William Clewell and Hugh Miller, with help from the ACLU of Arizona, won an emergency injunction . . .
In a concurrence in which [9th Circuit] Judge Andrew Kleinfeld appeared to be apologizing for following Supreme Court precedent, he pointed out . . . "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."
Kleinfeld lamented that viability remains the "'critical fact' that controls constitutionality," because its definition "changes as medicine changes."
"The briefs make good arguments for why viability should not have the constitutional significance it does, but under controlling Supreme Court decisions, it does indeed have that significance," he wrote.
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From "Abortion ban after 20 weeks rejected" by Howard Fischer, Capitol Media Services 5/22/13
Montgomery said he believes the [Supreme Court] justices will conclude the state has a right to impose restrictions -- even strict ones -- on abortions for legitimate reasons.
But Montgomery may have an uphill fight, especially if the justices see Montgomery's defense of the Arizona law as a bid to overturn Roe v. Wade and its 40 years of precedent. So Montgomery said he'll try instead to ask the high court to find the Arizona law is a legitimate exception.
But he's prepared for a direct challenge.
"I would certainly prefer, not as an advocate in the right-to-life issue but as an attorney, for the court to address head-on whether or not the presumptions that Roe was premised on truly exist to this day and can fairly be said to demand ongoing deference as a matter of precedent," Montgomery said. "I don't think it can."
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From "Appeals Court Strikes Down Arizona Law Banning Abortions at 20 Weeks" by Steven Ertelt, LifeNews.com 5/21/13
The ruling does not affect similar laws passed in other states except the law in Idaho, which is also covered under the jurisdiction of the [9th Circuit] appeals court.
The Center for Arizona Policy helped draft HB 2036, known as the Mother’s Health and Safety Act, and testified in support of the bill and complained when the ACLU sued.
“Once again, we see supposed ‘pro-woman’ organizations fight to protect abortion-on-demand despite the serious risks abortion presents to new moms,” said Cathi Herrod, President of Center for Arizona Policy. “The medical evidence presented during committee hearings make it clear that abortions after 20 weeks present a much greater risk to the life of the women. There is also substantial medical evidence that preborn children can feel pain at this age.”
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