In a blow to Arizona’s recently enacted late-term abortion ban, a three-judge panel of the U.S Court of Appeals for the 9th Circuit in San Francisco has blocked a key provision of the law from taking effect.
The Mother’s Health and Safety Act, passed by the Arizona Legislature and signed into law by Gov. Jan Brewer, was supposed to go into effect Aug. 2.
The new law, which prohibited most abortions after 20 weeks, was challenged by three doctors who provide abortions, represented by the American Civil Liberties Union and New-York based Center for Reproductive Freedom.
The ACLU and the New York center asked the U.S. District Court for a temporary restraining order or an injunction to prevent the law from going into effect. Judge James A. Teilborg ruled on the case July 30, declaring Arizona’s law constitutional. The two groups immediately appealed the ruling to the 9th Circuit.
On Aug. 1, just hours before the new law was to have become effective, the appeals court ordered that Arizona cannot prohibit most abortions after 20 weeks, pending a trial.
Both sides will file a brief with the court.
“I think it’s very unfortunate but it’s also something that we’ve come to expect from the 9th Circuit,” said Ron Johnson, executive director of the Arizona Catholic Conference, the public policy arm of the state’s Catholic bishops.
Last February, a three-judge panel of the 9th Circuit affirmed a U.S. District Court judge’s ruling as unconstitutional California’s Proposition 8, a 2008 voter-approved ban on same-sex marriage. The panel and later the full court stayed the ruling pending appeal. On July 31, it was appealed to the U.S. Supreme Court.
“I’m hopeful that in the end, we’ll prevail on this very important (Arizona) law which we believe is of a common-sense nature and which is constitutional and very much needed,” Johnson said.
John Jakubczyk, a local attorney and past president of Arizona Right to Life, condemned the circuit court’s decision.
“I find it reprehensible that the 9th Circuit would, in less than 24 hours, block what Judge Teilborg reviewed and examined,” Jakubczyk said. “Obviously (he) considered the Supreme Court’s past decisions on the rights of states to regulate abortions so long as they didn’t violate the language of Casey.”
In its 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, the U.S. Supreme Court upheld some state regulation of abortion but said outright bans would be unconstitutional.
“Teilborg was very clear in his decision that he did not believe that the provisions of the Arizona law violate Casey,” Jakubczyk said, “and therefore for the 9th Circuit to act is just another example of their extremism and the fact that they are out of touch with the legal system.”
“Their failure to recognize the humanity of the unborn child and the health needs of the mother point out the problem of our current judicial system,” he added.
In his July 30 ruling, Teilborg said the Arizona Legislature had written the law — known as H.B. 2036 — based on “the substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least 20 weeks gestational age.”
Supporters of the law said that it also protected women from increased risks incurred in late-term abortions. It included a penalty for any doctor who broke the law — a possible six-month jail sentence and suspension or revocation of his or her medical license. Opponents called the restrictions “extreme” and disputed the data about fetal pain.
Alabama, Idaho, Indiana, Kansas, Nebraska and Oklahoma have similar laws restricting late-term abortions based on the scientific finding that fetuses experience pain.
Across the country in Washington, a bill that would have banned abortions in the District of Columbia after 20 weeks failed to pass the U.S. House of Representatives July 30. The vote was 220-154 in favor of the bill, but according to an AP story it was being considered under “special rules,” which required a two-thirds vote to pass. It will not be taken up by the Senate.
Congress took up the measure because it has jurisdiction over the District of Columbia.
Opponents of the bill said it was an effort “to roll back” a woman’s constitutional right to have an abortion; supporters of the measure said the 220 vote for it — 203 Republicans and 17 Democrats — indicated to them the measure will eventually prevail.