Abortion Opponents Lose: No Supreme Court Review of Decision on 20-Week Abortion Ban

The U.S. Supreme Court won't hear an appeal of a decision on Arizona's ban on abortions past 20 weeks of gestation, which was found by a lower court to be unconstitutional.

The Ninth Circuit Court of Appeals had blocked the law from taking effect.

See also:
-Arizona's 20-Week Abortion Ban Is Unconstitutional, Says Federal Appeals Court

The argument proposed by proponents of the law was based on purported evidence that a fetus can feel pain after about 20 weeks of gestation.

However, a string of Supreme Court decisions have made it clear that abortions that take place before the fetus is viable (generally after 23 or 24 weeks) can't be banned outright.

That's one of the main points in the appellate court's opinion:

Under the twenty-week law, a woman who seeks to terminate her pregnancy must do so before twenty weeks gestational age or forfeit her right to choose whether to carry her pregnancy to term. The Supreme Court has expressly rejected such attempts to "stretch the point of viability" earlier in pregnancy, or to peg it to a precise gestational date. See Colautti, 439 U.S. at 389 ; Danforth, 428 U.S. at 64 . Under controlling Supreme Court precedent, a woman has a right to choose to terminate her pregnancy at any point before viability-not just before twenty weeks gestational age-and the State may not proscribe that choice.

Those who argued in favor of the law in front of the courts, including Maricopa County Attorney Bill Montgomery, maintained this was simply a legal regulation, not an outright ban.

Montgomery issued a graphic statement in response to the Supreme Court's decision not to hear the case, a decision the court made without comment:

Death be not proud. While the announcement of the United States Supreme Court's denial of certiorari in Horne v. Isaacson permits, at least for the immediate future, abortion for any reason at 20 weeks of development, proponents should not cheer. The increasing body of medical evidence that babies at 20 weeks are capable of feeling every rip and tear as they are severed from a mother's womb and that women face an exponentially greater risk of death at 20 weeks erases the facade that abortion only deals with 'tissue' and is safer than delivery. Regardless of the rationale for denying review, today's decision by the Supreme Court is disappointing. Nevertheless, safeguarding the health and welfare of mothers and defending the dignity of life at all stages is a just cause and a duty of government. Today's decision does not relieve government of that duty.

In the Ninth Circuit Court of Appeals opinion, Judge Andy Kleinfeld made a suggestion in his concurring opinion that kind of speaks to Montgomery's dramatics:

Were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out.

Cathi Herrod, president of the lobbying group Center for Arizona Policy -- which pushed strongly for the 20-week law in 2012 -- issued a predictable statement saying the Supreme Court had agreed with a "dangerous" decision was made by an "activist court":

The facts are clear: Abortion after 20 weeks of a pregnancy puts women's lives at risk, and preborn children at this age can feel pain. This is why the Arizona Legislature and Governor Brewer enacted the Mother's Health and Safety Act. It is also why ten states have laws in effect today that prohibit most abortions after 20 weeks. These laws have not been challenged by the abortion industry, yet the nation's highest court has allowed an activist court decision to remain the law in our state . . .

At some point, the U.S. Supreme Court will hear a challenge to a law similar to Arizona's law. I'm confident similar laws will eventually be upheld as constitutional. The Ninth Circuit decision will continue to be an aberration in abortion jurisprudence. For now, in Arizona, we already are taking the next steps to protect women and their preborn children from the dangerous and deadly practices of the abortion industry. In the coming days we will be announcing new legislation to address this situation.

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Follow Matthew Hendley on Twitter at @MatthewHendley.