The United States Supreme Court today declined to review a lower court decision that invalidated Arizona’s state law prohibiting most abortions after 20 weeks of pregnancy, far in advance of when a fetus can live outside the womb.
This should now tee up a challenge to invalidate the 20-week ban passed by the Arkansas legislature in a bill by Rep. Andy Mayberry. Another, more restrictive ban authorized by Sen. Jason Rapert, has already been enjoined by the court. But court action had not yet been filed on the 20-week ban, in part because pro-choice advocates were watching the progress of the Arizona case. However, abortion rights supporters still might be reluctant to press a challenge for fear a different outcome from a different judicial circuit could prompt a Supreme Court intervention to resolve a conflict between circuits.
PS — I should have mentioned originally that nobody provides late-term abortions on a regular basis in Arkansas and so a plaintiff — likely someone in dire straits — will be necessary most likely to mount a challenge here. Inevitably, that day will come and a woman in an awful situation will be faced with compounding her difficulties with a legal fight against an unconstitutional law. Happily, legal resources are available to support such a person, regardless of station.
Scotusblog said the refusal to review the 9th Circuit Court of Appeals decision came without comment and any noted dissents.
The Arizona law, like Mayberry’s law, prohibits abortions, except in medical emergencies, when the gestational age of the fetus is more than 20 weeks. The Arizona law’s definition of medical emergency is narrow, said the New York Times, encompassing conditions requiring immediate abortion to avert a pregnant woman’s death or a “serious risk of substantial and irreversible impairment of a major bodily function.”
Says the Arkansas law about such emergencies: ” … the pregnant woman has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman, not including psychological or emotional conditions. “
The law’s sponsors, in Arizona and Arkansas, claimed fetuses can feel pain at 20 weeks, a contention that has been disputed by major medical groups.
Arizona officials conceded that the law covered abortions before fetal viability, currently about 24 weeks as measured from a woman’s last menstrual period. But they argued that the law did not amount to an outright ban, only to a permissible regulation, one they said was justified by the state’s interest in preventing fetal pain and the increased risk to women as their pregnancies progress. The appeals court rejected both arguments.
Abortion opponents emphasize the danger of late-term abortions. What they don’t mention is that they are a rarity, a few dozen in Arkansas in a year, and typically done because of health issues, either with the fetus or mother.
Gov. Mike Beebe vetoed both anti-abortion laws passed by the 2013 legislature, but the Republican-controlled chambers overrode his vetoes despite his message that the laws were unconstitutional.