Roberts Court Asked to Review Arizona’s Pre-Viability Abortion Ban

On Friday, the State of Arizona asked the Supreme Court to review a federal appeals court decision declaring unconstitutional an Arizona law that bans pre-viability abortions, in direct challenge to Roe v. Wade.

Passed last year, Arizona’s HB 2036 bans all abortions at 20 weeks after a woman’s last menstrual period, with only a very narrow exception for cases when a woman is experiencing a dire and possibly life-threatening emergency. In July 2012, the Center for Reproductive Rights (CRR) and the American Civil Liberties Union (ACLU) sued to block the law, which had been scheduled to take effect on August 2, 2012, arguing the Arizona law violates the U.S. Constitution by banning abortions pre-viability. But a federal district court judge denied their request to temporarily block the law, ruling that because HB 2036 contained this narrow exception, it was really a “regulation” and not a pre-viability “ban”—and therefore constitutional.

The CRR and ACLU appealed, and in May the Ninth Circuit Court of Appeals reversed, permanently blocking the law and issuing a forceful ruling on reaffirming the central holding of Roe v. Wade, which dictates that states may not interfere with a woman’s right to choose abortion pre-viability. “Roe identified fetal viability as the earliest point in the pregnancy when the state’s interest becomes sufficiently compelling to justify not just regulation of the abortion procedure, but proscription of abortion unless necessary to preserve the life or health of the mother,” the court wrote. “Since Roe, the Supreme Court and lower federal courts have repeated over and over again that viability remains the fulcrum of balance between a pregnant woman’s right to control her body and the state’s interest in preventing her from undergoing an abortion.”

The petition for review, filed by Maricopa County Attorney Bill Montgomery, who also defended the law before the Ninth Circuit, was largely expected. That’s because proponents of the law, like Montgomery and Arizona Attorney General Tom Horne, have made clear the measure is designed to provoke a direct challenge to Roe v. Wade, by arguing a state’s right to ban abortions prior to fetal viability trumps a person’s fundamental right to be free from government-forced birth.

To that point, the Arizona law and the Ninth Circuit’s opinion gets to the heart of the anti-choice movement’s drive to reverse Roe. Supporters of the Arizona law had argued at both the district court and the appellate court that courts are not bound to consider viability as the point at which to determine whether or not a state can pass a restriction that creates an undue burden on the right to choose. In other words, the central holding of Roe—that fetal viability is the point at which a state can begin enacting all-out bans—is what anti-choice activist are targeting and asking the Roberts Court to take up.

No schedule for review of the petition is set yet. But, should the Roberts Court decide to take up the request, it is possible it could hear the challenge this term.

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  • fiona64

    There are many reasons why this law is ridiculous, not the least of which is that many fetal anomalies cannot even be detected prior to 20 weeks’ gestation with our current technology.

    Another is that politicians need to stop trying to practice medicine without a license.

    • tcarey

      Yeah because if that baby isn’t going to be perfect then it should be killed.

      It might have downs syndrome so it should be killed since it has an anomaly.

      • fiona64

        You are not qualified to determine the level of acceptable medical risk for anyone other than yourself.

        • tcarey

          Thus parents aren’t qualified to make medical decisions for their children.

          The decision to kill the child effects primarily the CHILD…

          Claiming, killing a living person, is determining a medical risk is a very sick rationalization.

          • fiona64

            A fetus is not a person. Pregnant women, OTOH, are persons. You are trying to determine medical risk for a person other than yourself — which is asinine.

          • tcarey

            I bet you are in favor of Obamacare aren’t you?

          • fiona64

            I bet you aren’t bright enough to know that it’s called the Affordable Care Act …

            And that’s wholly off-topic for this discussion.

          • tcarey

            Obama himself accepted calling it that. Yeah liberals love to give their draconian laws great sounding names…

            It is totally on topic. Why does the Government or politicians have the right to make medical decisions for me? You say that it is wrong..

          • fiona64

            Please tell me what medical decisions are being made for you.

            I’ll wait.

            Hint: getting insurance is not making a medical decision. And if you already have insurance, you aren’t impacted at all.

            You’re just pissed off that there’s a black man in the White House. You may as well admit it; we all know that’s what the Teabirchers are really mad about.

          • tcarey

            Yeah that is it pull the race card you bigot.

            His a the bastard child of white trash. He is not a black man. Men don’t support perverts and child killers..

          • fiona64

            Thanks for proving my point so very, very perfectly.

          • tcarey

            Like Zimmerman was a “white” hispanic.

          • Jennifer Starr

            Can’t you even try to construct a legible sentence?

          • fiona64

            My money is on “no …”

          • tcarey

            So is telling me I have to buy a house not making a housing decision for me? Yes it is.

          • fiona64

            WTF does this have to do with anything?

            Oh yeah … not a damned thing.

            You’re a troll … and a not very bright one at that. Be gone.

          • tcarey

            So you can see the form of your argument. You don’t like that so now I am a troll because the government forcing me to PRE PAY for something that I may never use is not making a medical decision for me. Yet you claim that the government has not right to make medical decisions for women who want to kill a separate human being.

            And I am the troll.

          • fiona64

            Could you parse your nonsense into English, perhaps without absurd run-on sentences?

            Thanks in advance.

            PS — anything connected to a woman by an umbilicus, sucking nutrients from her body? Is not a separate human being. Just a quick lesson in basic biology for you. You’re welcome.

          • tcarey

            Their DNA is different it is not her DNA…

            So when a baby breast feeds is it not a separate human being

          • fiona64

            You tell me, tcarey: Is an infant a born entity that is no longer attached by an umbilicus? Yes? Well, then, it’s a person … a separate human being.

            The DNA of a teratoma is different; that does not make it a person. The DNA of a hydatidform mole is different; that does not make it a person.

            I’m glad to rectify the gap in your education that resulted from skipping a day of high school biology class.

          • tcarey

            It is different and it is HUMAN. But I don’t think you all really meet the basic level of humanity since you all want to kill humans at any time for any reason…

          • tcarey


            We dumb it down for low-information anti-choicers … who claim that using correct medical terminology like zygote, embryo, or fetus is “dehumanizing.”

            You know, dehumanizing — like what you do when you opine that women are too stupid to make their own medical decisions.

            3:54 p.m., Wednesday Oct. 2”

            They are not making a medical decision, they are committing murder.

          • fiona64

            Is anyone this big a simpleton?

            Murder is the unlawful (illegal) taking of a person’s life with malice aforethought.

            Abortion is legal. That which is legal cannot also be unlawful … so your canard fails on that element alone. However, there is a second factor: a fetus is not a person. Rights are afforded solely to the born (please consult the 14th Amendment to the US Constitution if you are unclear on this matter) … so your canard fails on that level as well.

            Calling a legal medical procedure the same thing as a felony makes you look like the kind of person who thinks that someone who sits in the garage is a Buick.

            But let’s play your silly game for a minute. If abortion is, as you claim, murder — and, therefore, a felony — what punishment should the post-abortive woman receive? Surely you’ve thought your position out to its logical extension, yes?

          • tcarey

            The same as any murderer… Just like the hired hit man she paid to do the job.

          • fiona64

            I’m sorry, you’ll have to do better than that. There are a wide array of judicial options for punishing felons. What punishment should a woman get for obtaining an abortion?

  • Skulander

    There are many reasons why a woman might need an abortion past 20 weeks.

    In none of these cases has the government an “interest” in forcing a woman to remain pregnant by banning her access to an abortion. Am I the only one to find the language of this ruling, although favoring women’s rights, slightly patriarchal?