Arizona passed House Bill 2036 (PDF file), a law banning abortions after 20 weeks, in 2012. After a federal district court declined to issue a preliminary injunction barring enforcement of the law in Isaacson v. Horne (“Isaacson 1“), 884 F.Supp.2d 961 (D. Ariz. 2012), the Ninth Circuit Court of Appeals reversed earlier this year, finding the law unconstitutional. Isaacson v. Horne (“Isaacson 2“), No. 12-16670, slip op. (9th Cir., May 21, 2013). I mention this now because Texas is trying something similar.
I. HOUSE BILL 2036
Section 7 of Arizona’s HB2036 added two sections to title 36, chapter 20, article 1 of the Arizona Revised Statutes, which covers general provisions for abortion. Section 36-2158 required doctors to give various information to women seeking abortions, with different sets of information depending on whether the fetus had been diagnosed with a “lethal fetal condition” or not. The information had to be provided at least 24 hours before performing an abortion. Section 36-2159 prohibited abortions if the “probable gestational age of the unborn child,” as determined by the physician, is twenty weeks or more. Violating this restriction could subject a doctor to loss of license and criminal liability.
Section 9 of HB2036 listed findings that, according to the Legislature, supported section 7 and the rest of the bill. These included supposed complications that become more likely in late-term abortions, the state’s interest in “protecting the health of women,” and fetal pain.
II. ISAACSON 1 – U.S. DISTRICT COURT, DISTRICT OF ARIZONA
The plaintiffs in Isaacson were three medical doctors who filed suit against the state attorney general, officials for Maricopa and Pima Counties, and the Arizona Medical Board and its director. The filed suit on July 12, 2012, seeking a preliminary injunction to bar enforcement of section 7 of the law, which was to take effect on August 2. They specifically objected to the 20-week ban.
The question before the district court was whether or not to grant preliminary and permanent injunctions barring enforcement of section 7. The plaintiffs had to prove four elements: (1) likelihood of eventual success on the merits of the lawsuit, (2) likelihood of “irreparable harm” without an injunction, (3) a “balance of equities” in their favor, and (4) a “public interest” in an injunction. Isaacson 1 at 965.
The district court ultimately concluded that the plaintiffs were unlikely to prevail on the merits of their case, so it denied the preliminary injunction. It interpreted the issue as a question of whether section 7 imposed an undue burden on a woman’s right to obtain a previability abortion. Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992). H.B. 2036, the court said, “would be unconstitutional if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Isaacson 1 at 968 (internal quotations omitted), quoting Gonzales v. Carhart, 550 U.S. 124, 156 (2007).
To summarize the law on abortion rights up to this point, Roe determined the Constitutional right to previability abortions (typically before 24 weeks), Casey established that the government cannot infringe on previability abortion rights, and Gonzales explored the limits of Casey by upholding a ban on “partial-birth” abortions without regard to viability. The district court in Isaacson had to consider whether section 7 of HB2036 imposed a “substantial obstacle” within the scope of Casey but not within the “state’s interest” exception created by Gonzales.
The district court cited the state’s “substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion” at the 20-week point, although it spends almost no time discussing why it finds the evidence convincing. Isaacson 1 at 971. The court determined that the plaintiffs would be unlikely to succeed on the merits of their claim based, it would seem, almost entirely on a conclusion that the law regulated, rather than banned, abortion, giving particular weight to the fetal pain concept and the court’s own squeamishness about the descriptions of D & E procedures and induction abortions. Id.
III. ISAACSON 2 – NINTH CIRCUIT COURT OF APPEALS
The plaintiffs appealed the decision to the Ninth Circuit Court of Appeals, which heard arguments in November 2012 and issued its ruling on May 21, 2013. The Ninth Circuit reversed the district court and granted the injunction. “Because Section 7 deprives the women to whom it applies of the ultimate decision to terminate their pregnancies prior to fetal viability,” the court held, “it is unconstitutional under a long line of invariant Supreme Court precedents.” Isaacson 2 at 6. The court also took issue with how the district court handled the procedural aspects of the case. Id. at 13. The court acknowledged the plaintiffs’ right as physicians to assert a constitutional claim on behalf of their patients, id. at 15-16, and proceeded to the constitutional questions.
The court reiterated the basic holding of Roe: “Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Id. at 18; citing Casey, 505 U.S. at 846; Gonzales, 550 U.S. at 145. Gonzales, the court noted, affirmed Casey‘s substitution of “viability” for Roe‘s trimester framework. The court found that “viability” is still the central concern when determining the constitutionality of a law restricting abortion rights. Isaacson 2 at 21.
The court rejected Arizona’s claim that section 7 of HB2036 was a “regulation” of previability abortions instead of a “prohibition.” Id. at 24-25. It found that the law did away with a woman’s right to choose entirely from the 20-week mark to the point of viability, by leaving the determination of gestational age to the doctor. The choice belongs to the doctor, in other words, not the mother, if the doctor has any reason to believe that gestational age has reached twenty weeks. Id. at 25. HB2036 itself states in section 9(B)(1) that its purpose is to “prohibit” the mother’s choice of abortion at 20 weeks’ gestational age. This has the effect of prohibiting previability abortions, which violates the Supreme Court precedents set by Roe through Gonzales. Id. at 26, 36.
IV. ISAACSON 3?
If Arizona officials intend to appeal to the U.S. Supreme Court, I’m not sure how that process works, but we won’t know about a certiorari decision until the court reconvenes after the summer.
Photo credit: By Wing-Chi Poon (Own work) [CC-BY-SA-2.5], via Wikimedia Commons.
