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Supreme Court won’t revive Arizona’s 20-week abortion ban

WASHINGTON — The Supreme Court on Monday declined to hear an appeal from Arizona officials seeking to revive a state law that barred most abortions after 20 weeks of fetal gestation. The justices offered no reasons for turning down the appeal, as is their custom.

The case concerned an Arizona law, enacted in 2012, that prohibits abortions, except in medical emergencies, when the gestational age of the fetus is more than 20 weeks. The law’s definition of medical emergency is narrow, encompassing conditions requiring immediate abortion to avert a pregnant woman’s death or a “serious risk of substantial and irreversible impairment of a major bodily function.”

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The law’s sponsors claimed fetuses can feel pain at 20 weeks, a contention that has been disputed by major medical groups.

In May, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled that the Arizona law was unconstitutional “under a long line of invariant Supreme Court precedents” starting with Roe v. Wade in 1973.

The core message of those decisions, the appeals court said, was that women have a constitutional right to end their pregnancies before the fetus is viable.

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Arizona officials conceded that the law covered abortions before fetal viability, currently about 24 weeks as measured from a woman’s last menstrual period. But they argued that the law did not amount to an outright ban, only to a permissible regulation, one they said was justified by the state’s interest in preventing fetal pain and the increased risk to women as their pregnancies progress. The appeals court rejected both arguments.

Judge Andrew J. Kleinfeld concurred, saying that Supreme Court precedent required him to vote to strike down the law. But he questioned the constitutional significance of fetal viability, calling it “an odd rule, because viability changes as medicine changes.” Since the Roe decision, viability has dropped from about 28 weeks, he said, as doctors become able to save ever younger premature babies.

Kleinfeld added that the justifications offered for the Arizona law were insufficient.

“Were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death,” Kleinfeld wrote, “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.”

“As for Arizona’s claimed interest in the mother’s health,” he continued, “people are free to do many things risky to their health, such as surgery to improve their quality of life but unnecessary to preserve life.”

Arizona is one of about a dozen states that have tried to ban most abortions after 20 weeks. Only a few of the laws have been challenged in court, all successfully.

In urging the court to hear the Arizona case, Horne v. Isaacson, No. 13-402, officials there told the justices that the small number of challenges was an effort by abortion rights advocates to make sure that there was no split among the lower courts, a factor that often figures in the Supreme Court’s decision to hear a case.

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