The State of Arizona enacted legislation that banned abortions after twenty weeks of pregnancy. Under present U.S. law, almost any law that seeks to prohibit a woman from obtaining an abortion prior to the baby’s “viability” is unconstitutional. Immediately after enactment of this legislation, a lawsuit was filed to prevent implementation of the new law. The motion requesting a preliminary injunction by the plaintiffs, a group of obstetricians and gynecologists, was denied by the District Court in late July 2012. The District Court, in denying the plaintiffs’ motion, wrote:
In choosing to put a limit on abortions past 20 weeks gestational age, the Arizona Legislature cited to the substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least twenty weeks gestational age. Defendants presented uncontradicted and credible evidence to the Court that supports this determination. Namely, the Court finds that, by 7 weeks gestational age, pain sensors develop in the face of the unborn child and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors. . . . That the unborn child can feel pain is further supported by the fact that when provoked by painful stimuli, such as a needle, the child reacts, as measured by increases in the child’s stress hormones, heart rate, and blood pressure. . . . Given the nature of D&Es and induction abortion, and the finding that the unborn child has developed pain sensors all over its body by 20 weeks gestational age, this Court concludes that [Arizona] has shown a legitimate interest in limiting abortions past 20 weeks gestational age. Further, in promulgating H.B. 2036, Arizona expressed concerns for the health of the pregnant woman, finding that the instance of complications is highest after twenty weeks of gestation. This additional legitimate interest further supports H.B. 2036’s regulation on abortions after 20 weeks gestational age…. Based on the foregoing, the Court finds that Plaintiffs cannot succeed on the merits of their claim that H.B. 2036 is unconstitutional. (Emphasis added.)
The plaintiffs then filed an emergency motion appealing the court’s decision to the liberal (and most overturned) 9th Circuit Court of Appeals in San Francisco, in which the plaintiffs asserted that “if the ban is permitted to go into effect it will cause irreparable harm to Plaintiffs’ patients and other Arizona women, by violating their constitutional rights and endangering their health.” No contentions were made about the endangered health of the soon-to-be aborted babies.
Interestingly, an amicus brief was filed earlier this month with the appellate court on behalf of a physicians and medical researchers group, Doctors on Fetal Pain. This group supports the Arizona law restricting non-emergency abortions after twenty weeks. The Arizona law was innovative as it relied upon scientific evidence establishing the unborn child’s capacity to feel pain at twenty weeks gestation, and concluded that the acquisition of this capacity makes the child sufficiently like, yes, the rest of us. Thus, the amicus concludes, it was reasonable for Arizona to restrict abortion past twenty weeks. After all, one of the most basic and widely accepted principles of political governance is that that the State is justified in promulgating laws to protect individuals (and animals) from harm and cruelty by others. You can read the amicus brief here.
In early August, the 9th Circuit ruled to temporarily prevent implementation of the Arizona law while it considers the case. Notwithstanding the result in the appellate court, I think that this case is likely to end up before the U.S. Supreme Court, as the Supreme Court has never been asked whether a State has a legitimate interest in protecting unborn children, who have the capacity to feel pain, to support a limited prohibition on abortion. More details to come as this case develops. Yes, elections do have consequences.