Abortion Opponents Lose: No Supreme Court Review of Decision on 20-Week Abortion Ban

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By Jeff Kubina, via Wikimedia Commons

The U.S. Supreme Court won't hear an appeal of a decision on Arizona's ban on abortions past 20 weeks of gestation, which was found by a lower court to be unconstitutional.

The Ninth Circuit Court of Appeals had blocked the law from taking effect.

See also:
-Arizona's 20-Week Abortion Ban Is Unconstitutional, Says Federal Appeals Court

The argument proposed by proponents of the law was based on purported evidence that a fetus can feel pain after about 20 weeks of gestation.

However, a string of Supreme Court decisions have made it clear that abortions that take place before the fetus is viable (generally after 23 or 24 weeks) can't be banned outright.

That's one of the main points in the appellate court's opinion:
Under the twenty-week law, a woman who seeks to terminate her pregnancy must do so before twenty weeks gestational age or forfeit her right to choose whether to carry her pregnancy to term. The Supreme Court has expressly rejected such attempts to "stretch the point of viability" earlier in pregnancy, or to peg it to a precise gestational date. See Colautti, 439 U.S. at 389 ; Danforth, 428 U.S. at 64 . Under controlling Supreme Court precedent, a woman has a right to choose to terminate her pregnancy at any point before viability-not just before twenty weeks gestational age-and the State may not proscribe that choice.
Those who argued in favor of the law in front of the courts, including Maricopa County Attorney Bill Montgomery, maintained this was simply a legal regulation, not an outright ban.

Montgomery issued a graphic statement in response to the Supreme Court's decision not to hear the case, a decision the court made without comment:
Death be not proud. While the announcement of the United States Supreme Court's denial of certiorari in Horne v. Isaacson permits, at least for the immediate future, abortion for any reason at 20 weeks of development, proponents should not cheer. The increasing body of medical evidence that babies at 20 weeks are capable of feeling every rip and tear as they are severed from a mother's womb and that women face an exponentially greater risk of death at 20 weeks erases the facade that abortion only deals with 'tissue' and is safer than delivery. Regardless of the rationale for denying review, today's decision by the Supreme Court is disappointing. Nevertheless, safeguarding the health and welfare of mothers and defending the dignity of life at all stages is a just cause and a duty of government. Today's decision does not relieve government of that duty.
In the Ninth Circuit Court of Appeals opinion, Judge Andy Kleinfeld made a suggestion in his concurring opinion that kind of speaks to Montgomery's dramatics:
Were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, 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.
Cathi Herrod, president of the lobbying group Center for Arizona Policy -- which pushed strongly for the 20-week law in 2012 -- issued a predictable statement saying the Supreme Court had agreed with a "dangerous" decision was made by an "activist court":
The facts are clear: Abortion after 20 weeks of a pregnancy puts women's lives at risk, and preborn children at this age can feel pain. This is why the Arizona Legislature and Governor Brewer enacted the Mother's Health and Safety Act. It is also why ten states have laws in effect today that prohibit most abortions after 20 weeks. These laws have not been challenged by the abortion industry, yet the nation's highest court has allowed an activist court decision to remain the law in our state . . .

At some point, the U.S. Supreme Court will hear a challenge to a law similar to Arizona's law. I'm confident similar laws will eventually be upheld as constitutional. The Ninth Circuit decision will continue to be an aberration in abortion jurisprudence. For now, in Arizona, we already are taking the next steps to protect women and their preborn children from the dangerous and deadly practices of the abortion industry. In the coming days we will be announcing new legislation to address this situation.
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Follow Matthew Hendley on Twitter at @MatthewHendley.

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DonkeyHotay topcommenter

Holey Baable thumpin' Repuglykkkans get bitch-slapped once again!

ExpertShot topcommenter

The Tea Party Republicants have been pushing these unconstitutional laws through the legislature for years in Arizona and around the nation.  Over and over they have been DECLARED unconstitutional by our government that many have laid down their lives to protect.  People, it is obvious that we have an enemy within - these American Taliban are trying to subvert our constitution and take away our freedom.  It is indeed time to water the tree of liberty with the blood of Tyrants - THE TEA PARTY REPUBLICANTS!  We should do so at our earliest opportunity - in the upcoming elections.  Please dear people, vote these enemies of our constitution the FUGK out of office and let's get some people who actually support our constitution and our communities in office.  I have had just about enough of these ignorant assed fools who want to impose their version of morality on the rest of us (or more accurately fool us into thinking their morality is better than any others).


Poor poor Ayatollah Herrod and her American Taliban.


This case comes under the original jurisdiction of the scotus BECAUSE it is a state vs US. Holder brings these cases into lower federal courts that have no jurisdiction in such cases and continuously gets away with it.

valleynative topcommenter


If you really want what's best for the nation, you have to make an effort to keep your enemies straight.  The Tea Party movement has some overlap with the religious right, but they are NOT synonymous.   It is the religious right that cares more for their Biblical laws than for the Constitution.  True Tea Party members value the Constitution even when it blocks some of their own goals.



the funny thing to me is that the entire time they push these unconstitutional big government policies they talk about how they really are "Small government constitutional conservatives".


@bbarron2Attorney General Holder had nothing to do with this case. If he had, the case name would have been U.S. DOJ v. Horne, but it wasn't. It was Horne v. Issacson, which indicates someone other than the U.S. government filed the suit against the state of Arizona. Most likely the major reason the Supreme Court refused to accept the case has to do with Roe v. Wade and the Constitution's Supremacy Clause.  No state can pass a law which supersedes a federal law. 

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