The abortion ban passed by the Arizona legislature contains an unusual aspect. Looking at the language of certain texts that describe the development of a fetus, the person who wrote the Arizona law hit on the fact that some texts describe fetal age not just from the fertilization of the egg, but from the first day of a woman’s last period before becoming pregnant. The texts do this because it is often easier to determine when a woman would have had her period than to determine the exact date of fertilization. So, the Arizona law bans abortions after twenty weeks from the date when a period was expected. The law says “twenty weeks,” but effectively bans abortions after 17 to 18 weeks.
In the 1991 Supreme Court decision in Planned Parenthood v. Casey ruled that a state cannot ban abortions before “viability,” which at the time of Roe v. Wade in 1973 was 28 weeks, and in 1991 was 22 to 24 weeks, both with extraordinary medical intervention. The 1991 ruling and others about abortion have forbidden states banning later abortions where the medical evidence shows the continuation of the pregnancy threatens the life or health of the mother. The ruling also said that a state cannot place an “undue burden,” which was defined as having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
The anti-abortion forces have wanted for years to pass a law that would be so unacceptable that a lawsuit would ensue and the entire issue could be sent back to the Supreme Court. They believe the make-up of the Court at this time is perfect for such a suit, and that with the consist 5-4 conservative overriding liberals history of the Roberts Court, they would get this court to ban abortions in all of America.
But the pro-abortion forces have not co-operated. Law after heinous law has been passed, but no one sued until this past few weeks, and they are doing so, not on the basis of Roe v. Wade, but the 1991 decision in Planned Parenthood v. Casey.
The cited reason for requesting an injunction in the Mississippi lawsuit is the principle of “undue burden,” because the law places a substantial obstacle in the way of abortion seekers. The law requires doctors who perform abortions to be able to admit patients to a hospital, something that the two out-of-state doctors at the Jackson Women’s Health Organization clinic cannot do.
In Arizona, the plaintiffs are using the viability portion of the 1991 ruling because the law bans abortions after 17 to 18 weeks following fertilization, and that is not a benchmark of viability. Though we have made great strides in saving the lives of premature babies, there have only been a tiny number of cases where a baby survived being born at 20 weeks. Survival between 22 and 24 weeks is still not guaranteed.
The lawsuit was brought by the Center for Reproductive Rights, the ACLU and three Arizona doctors. Nancy Northup, president of the CRR said, “This is the most extreme example yet of these early-limit laws. This law also has a radically limited health exception that is completely unacceptable under the constitutional standard. A woman has to be in a dire emergency to have an abortion.”
Dr. Paul A. Isaacson, a Phoenix OB-GYN who is a co-plaintiff in the suit, explained that the law could “profoundly affect some of my patients.” He said that women seeking abortions after the first trimester “do so because they have received a diagnosis of a severe fetal anomaly during the course of a wanted pregnancy,” many of which cannot be detected before 20 weeks, no less 17. Dr. Isaacson fears the new law would force women to carry a fetus to term “often at substantial health risks to themselves.”
No matter who wins the case at the Federal District and Appellate levels, it would be appealed by the loser, meaning it would proceed to the Supreme Court, which is exactly what the anti-abortion advocates have wanted….
Well, they wanted it until the Supreme’s decision in the Affordable Care Act case. Chief Justice John Roberts defense of the ACA has now thrown the entire issue of a Supreme Court ban on abortions into unpredictability. Roberts not only upheld the individual mandate in the ACA, but did so using a portion of the Constitution not used by the Obama Administration to defend the law. Those who so wanted a suit that would go to the Supreme Court can no longer trust that Chief Justice Roberts will rule in their favor with Justice Antonin Scalia, Justice Clarence Thomas and Justice Samuel Alito who are all counted on for their vote to ban abortion. Scalia’s dissent in the 1991 case actually condemned Roe v. Wade.
Arizona’s “pregnant before sex” law and the Mississippi doctor hospital admission privilege law are the easiest to challenge in the Courts because they violate the 1991 ruling instead of just Roe v. Wade. But, they open the possibility that the Court would visit all the laws that have been passed in the last two years restricting access to abortion with unnecessary building stipulations, unreasonable waiting periods and other backdoor means of banning abortions.