by Max Brantley
The 9th U.S. Circuit Court of Appeals has struck down the Arizona law that put a ban on abortions beginning with the 20th week of pregnancy.
This is good news for abortion rights generally, though not necessarily in Arkansas since we are in a different judicial circuit. But it should give some ammunition to fire at the new Arkansas ban on abortions at 20 weeks, a law that takes effect this summer. Legal action is being planned on that Arkansas law, but it presents more difficulties than the 12-week ban, recently enjoined by federal Judge Susan Webber Wright.
Very few abortions are performed in Arkansas at 20 weeks or later (50 in 2011 according to state statistics) and they are not routinely provided by the centers that provide most of the abortions in the state, many of them medicine-induced abortions at the early stage of pregnancy. So the abortion providers who are plaintiffs in the 12-week suit aren't readily suited to be plaintiffs in the 20-week case, Most likely, a Jane Doe will be necessary and time will be critical, particularly to the woman, since surgical abortions provided late in pregnancy are invariably prompted by a serious medical condition of the woman or the fetus.
Arizona tried to use the same defense for its 20-week law that anti-abortionists cooked up in Arkansas for the 12-week ban. Because the law allows some exceptions, it doesn't amount to a "ban. But the 9th Circuit rejected that reasoning, saying the law still banned many abortions before viability, or the time the fetus could live outside the womb. That is prohibited by U.S. Supreme Court precedent. So far.
Hard to see how these same words from the 9th Circuit wouldn't apply in Arkansas:
The panel reversed the district court’s order denying declaratory and injunctive relief to plaintiffs and held that the Constitution does not permit the Arizona legislature to prohibit abortion beginning at twenty weeks gestation, before the fetus is viable.
The panel held that under controlling Supreme Court precedent, Arizona may not deprive a woman of the choice to terminate her pregnancy at any point prior to viability. The panel held that Arizona House Bill 2036, enacted in April 2012, effects such a deprivation by prohibiting abortion from twenty weeks gestational age through fetal viability. The panel held that the twenty-week law is therefore unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe v. Wade and ending with Gonzales v. Carhart.
Concurring, Judge Kleinfeld stated that the current state of the law compelled him to concur, and that what controls this case is that the parties do not dispute that the twenty week line Arizona has drawn is three or four weeks prior to viability.