Science, legislation and constitutional law intersected with carefully muted religious scruples in a lawsuit challenging Arizona’s latest abortion law. Three male doctors, all of whom perform abortions prior to fetal viability, none of whom perform rare post-viability abortions, sought an injunction against enforcement of a law that would ban abortions after the 20th week of pregnancy.
Although some state legislatures in the last one to two years have adopted laws blatantly in conflict with the federal constitution, and destined never to be enforceable, Arizona’s law is more nuanced. Rather than banning abortion after eight weeks of pregnancy, the legislation set the boundary between a woman’s right to make this decision, and the state’s interest in protecting a distinct life, at 20 weeks. A fetus at this stage weighs a little over 500 grams, on average, and will at 32 weeks weigh a little under 3000 grams.
At the time the Supreme Court decided Roe v. Wade in 1973, fetal viability was a commonly accepted medical standard, which has to some extent been superceded by more detailed and nuanced knowledge of what happens inside the womb during pregnancy. The Arizona revised statute cites evidence that “unborn children feel pain during an abortion at that gestational age.”
Constitutional jurisprudence concerning abortion turns on a fulcrum between the right of an individual woman to make intimate decisions without interference from the police powers of the state, and recognition that at some point there is a living organism independently aware of itself and its surroundings, and capable of independent existence outside the womb.
Federal district court judge James Teilborg ruled in July 2012 that the state law was constitutionally acceptable, reasoning that it regulated, rather than prohibited, abortion after twenty weeks gestational age, because it permits abortions in cases of medical emergency after twenty weeks gestation. The Ninth Circuit Court of Appeals reversed this ruling May 21, 2013, in rather strong language, given the respect with which even appellate courts generally treat subordinate courts.
Plainly stating that the district court’s reasoning was “erroneous” and “misconstrued” applicable law, the opinion refers with apparent exasperation to “the litany of justifications given by the district court for failing to follow the Supreme Court’s clear rule that no woman may be entirely precluded from choosing to terminate her pregnancy at any time prior to viability.”
All three appellate judges recognized that the Supreme Court has set a bright line rule that the state may not proscribe abortion before viability. One senior circuit judge, Andrew J. Kleinfeld, wrote a separate concurring opinion to say that “The current state of the law compels me to concur,” while making clear that he saw grounds to revise the current state of the law.
“We are bound, in this particular case,” he wrote, “by the absence of any factual dispute as to whether the fetuses to be killed between gestational ages 20 and 23 or 24 weeks are viable. The decision in this case cannot, of course, establish the factual medical question of whether they are viable, because non-viability is the underlying factual assumption of both parties in today’s case. For this case, Arizona concedes nonviability.”
The concurring opinion emphasized “viability changes as medicine changes. As Planned Parenthood v. Casey noted, between Roe v. Wade in 1973 and the time Casey was decided in 1992, viability dropped from 28 weeks to 23 or 24 weeks, because medical science became more effective at preserving the lives of premature babies. 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. And even though medical science for premature babies may advance to where they are viable three or four weeks earlier, Arizona does not claim that science has done so.”
At the 9th circuit, the case was decided based on controlling Supreme Court precedent, which inferior courts are not authorized to revise. The Supreme Court itself could modify its own previous rulings, and has done so many times. Continued litigation of the Arizona statute may eventually provide an opportunity for the high court to take note of evolving scientific understanding.
Justice Blackmun’s opinion for a 7-2 majority of the court recognized both the protected right of a woman to make her own decisions, and the growing state interest, over the course of pregnancy, in acting to protect what increasingly became an independent individual life. Without abandoning that framework, a properly presented argument marshalling well established facts might result in a modest adjustment in the fulcrum on which legal disposition rests.
Judge Teilborg was nominated to be a federal judge by President Clinton, on the recommendation of Senator John Kyl, an Arizona Republican. Judge Kleinfeld, from Alaska, was nominated to the Ninth Circuit bench by President GHW Bush in 1991.