In 2012, the Arizona legislature passed a law prohibiting abortion after 20 weeks (except in cases where a pregnancy jeopardizes the life of or poses a serious health threat to the mother). Given the tenuous legal history of abortion law post Roe v. Wade (1973), the law was passed by the legislature and held constitutional by a federal district court on the grounds that an unborn child has developed the capacity for pain by 20 weeks and that abortions after 20 weeks pose significantly higher risks to the mother. The Ninth Circuit Court disagreed, finding that the viability of the unborn child was the only constitutionally permitted limitation on a woman's right to abortion. By arguing on the grounds of viability, however, the Ninth Circuit ignored the important legal precedents set by the Supreme Court since Roe v. Wade. This case offers the Supreme Court the opportunity to clarify those precedents and extend needed legal protections for unborn children.
The case, Horne v. Isaacson, was initiated by three doctors who perform late-term abortions. The doctors brought suit against Tom Horne, the Attorney General for the State of Arizona, and William Montgomery, County Attorney for Maricopa County. In their effort to appeal the Ninth Circuit ruling, Attorney General Horne and County Attorney Montgomery have asked John Eastman and our Center for Constitutional Jurisprudence to serve as lead counsel.
The petition for writ of certiorari asking the Supreme Court to review the case was filed on Friday, September 27, 2013. You can view the full petition here.
Brief Review of the Case
The current state of scientific knowledge demonstrates that a fetus feels pain beginning as early as sixteen (and quite likely by twenty) weeks gestation and that late-term abortion poses an exponential increase in risk to maternal health. Confronted with this documented evidence, the utter gruesomeness of late-term abortion (however performed), and the threats it posed to the integrity of the medical profession, the State of Arizona determined to protect the health of the mother and the dignity of the unborn child by allowing abortions after twenty weeks only when necessary to avert death or serious health risks to the mother. As of October 2013, 13 state legislatures have passed similar statutes that heavily regulate abortion after twenty weeks.
The district court for Arizona determined that the State of Arizona has a legitimate interest in regulating post-twenty-week abortions because of the "substantial and well-documented evidence"—evidence that was both "uncontradicted and credible"—"that an unborn child has the capacity to feel pain during an abortion by at least twenty weeks gestational age" and because of Arizona’s well-supported legislative "finding that the instance of complications [to the health of the pregnant woman] is highest after twenty weeks of gestation."
A panel of the Court of Appeals for the Ninth Circuit reversed the district court ruling, holding that a "prohibition on the exercise of [a woman’s constitutional right to choose to terminate her pregnancy before the fetus is viable] is per se unconstitutional." In the Ninth Circuit panel's view, "whether the District Court's 'findings' [with respect to fetal pain and significantly increased maternal health risks] are supported by the record" was completely irrelevant to its decision.
The Ninth Circuit Court based its ruling on the viability of the unborn childon the grounds that viability was the "central holding" of Roe v. Wade, which "[Planned Parenthood v.] Casey reaffirmed" and which Gonzales v. Carhart "has since reiterated." But the Supreme Court's abortion jurisprudence is more nuanced than that. In Planned Parenthood v. Casey, the Court recognized that changes in our knowledge of the facts of abortion and childbearing could render the viability standard obsolete. One such change of fact was the gruesomeness of partial-birth abortion with which the Supreme Court was confronted in Gonzales v. Carhart. The facts of partial-birth abortion, which had led to a Congressional ban on partial birth abortion, represented significant enough injury to override the viability standard. Moreover, the District Court decision that Gonzales reversed was based on the same viability line treated as dispositive by the Ninth Circuit in this case.
The case at hand therefore represents an opportunity for the Supreme Court to clarify its previous rulings and reconsider the logic of the viability standard applied in Roe and Casey. By the Court's own admission, this standard is on a collision course with itself because it ignores the substantial State interests in the mother and unborn child, and because the advances of medicine have made the viability of an unborn child an ever-receding line.
In their effort to appeal the Ninth Circuit's ruling, the state of Arizona has enlisted John Eastman and the Claremont Institute's Center for Constitutional Jurisprudence to serve as lead counsel on the case. We are joined by Maricopa County Attorney William Montgomery and his office, Edwin Meese III of the Heritage Foundation, Arizona Solicitor General Robert Ellman, Alliance Defending Freedom, and Americans United for Life. The petition for writ of certiorari asking the Supreme Court to review the case was filed on Friday, September 27, 2013. You can view the full petition here.
Amicus Briefs in Support of Petition
- From Gov. Mary Fallin (Oklahoma), et. al.
- From The Association of American Physicians and Surgeons
- From The Center for Arizona Policy
- From Heartbeat International, et. al.
- From The Christian Legal Society, et. al.
- From The Jerome LeJeune Foundation, et. al.
- From The States of Ohio, Montana, and 14 others
- From The American Center for Law and Justice