Arizona Attorneys Outline Why Roberts Court Should Revisit ‘Roe’

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Analysis Abortion

Arizona Attorneys Outline Why Roberts Court Should Revisit ‘Roe’

Jessica Mason Pieklo

It's time to do away with the viability test for restricting state power to ban abortion, attorneys defending Arizona's "fetal pain" ban argue.

On Thursday, attorneys for the State of Arizona filed a petition for review with the Supreme Court in the case of Horne v. Isaacson, a challenge to the state’s 20-week abortion ban. The ban and subsequent litigation are a direct challenge to a central component of Roe v. Wade that holds states may not ban abortion pre-viability. And if the Roberts Court agrees to hear it, the case could be argued later this year.

The state’s petition outlines three issues it wants to raise to the Roberts Court, and much like the law in dispute, those issues directly take on the use of fetal viability as a constitutional bright line in limiting state power to restrict abortion access.

The first issue the state attorneys want the Court to answer is whether viability is the “only critical factor in determining constitutionality, to the exclusion of other significant governmental interests” in state abortion bans, or whether Arizona’s pre-viability ban is “facially valid because it does not pose a substantial obstacle to safe abortion.” The second issue up for debate is whether the Ninth Circuit Court of Appeals got it wrong when it declined to “recognize that the State’s interests in preventing documented fetal pain, protecting against a significantly increased health risk to the mother and upholding the integrity of the medical profession” are “sufficient” to support a pre-viability ban in cases where the life of the pregnant person is not at risk. And lastly, the attorneys want the Court to revisit Roe and its progeny altogether to determine if “in light of the recent, compelling evidence of fetal pain and significantly increased health risk to the mother for abortions performed after twenty weeks gestational age,” Roe and those decisions that follow should still be law.

To set up the direct challenge to Roe and the fetal viability standard, the state’s attorneys ground their legal challenge in a political strategy developed in the fight over “partial-birth abortion” bans. The state’s petition opens by directing the Court’s attention to Gonzales v Carhart, the Supreme Court decision that upheld a prohibition on the federal “partial-birth abortion” ban.

Roe has collapsed and Texas is in chaos.

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The attorneys for Arizona do this for a couple of reasons. First, they do it for the proposition that it is the Court’s duty to defer to legislative findings when enacting abortion restrictions. Second, they join together the hyperbole that marked the debate around the “partial-birth” bans with so-called fetal pain bans to provoke similar outrage to justify a pre-viability ban, by arguing that like the “partial-birth” bans, Arizona’s law “upheld the integrity of the medical profession by ‘drawing a bright line between abortion and infanticide.'” From there, the attorneys noted that lawmakers made legislative findings of their own to justify the pre-viability ban. Attorneys for the state also note in their petition that 12 other states have similar bans, all based on similar legislative findings. If, attorneys argue, 13 states believe the “science” supports pre-viability bans, then doesn’t the Roberts Court think it’s time to re-visit Roe?

The state also relies on the reasoning from the district court that initially upheld the Arizona law, which explains that because the law has a narrow exception for the life or health of the pregnant person it is not a total ban, even if it violates Roe’s pre-viability standard.

Notably, though, while the Arizona law is purportedly necessary because of the “science” of fetal pain, attorneys for the state spend most of their focus pivoting the framing of the constitutionality of abortion access away from the fundamental rights of the pregnant person and to the power of the state to regulate reproduction in the name of potential fetal life. Simply put, states are looking for a way to significantly expand their police powers and see fetal pain bans as one avenue to do so. And it squarely sets up for the Roberts Court the proposition that the only obligation the state has to ensuring access to abortion care is to not provide “substantial obstacles.” And as we’ve seen recently in the Fifth Circuit, even laws that drive providers out of business and cut off the availability of abortion services can survive the “substantial obstacle” test.

Those challenging the law have until November 29 to file their response to Arizona’s petition. Then the Supreme Court will take the request under consideration and decide whether or not to take the case.