On Friday, the Supreme Court met in conference to consider taking up the first in what could be a series of cases directly challenging Roe v. Wade.
Isaacson v. Horne is the legal challenge to an Arizona law that bans abortion 20 weeks after a woman’s last menstrual period on the premise that that is the point at which a developing fetus feels pain. The ban, which contains only a narrow exception for dire medical emergencies, is in direct conflict with a central holding from Roe v. Wade, which states that prior to fetal viability a state may not ban abortion.
Supporters of the law, including Arizona Attorney General Tom Horne, expressly acknowledge the law is designed to test the strength of that holding. In May of last year, the Ninth Circuit Court of Appeals permanently struck the law as blatantly constitutional on several grounds. First, the Ninth Circuit ruled, the law is a pre-viability ban. Second, even if the state has interests in regulating abortion pre-viability, those interests do not trump the privacy rights of a person in deciding to terminate a pregnancy pre-viability for any reason, and that the law’s narrow exception for the health of the pregnant person would not save an otherwise unconstitutional ban.
The State of Arizona appealed that ruling, specifically asking the Roberts Court to take the case and answer three questions. First, did the Ninth Circuit get it right when it ruled that “viability” is the baseline from which the constitutionality of all abortion restrictions are to be judged, to the exclusion of all others, such as fetal pain? Or can a law that bans abortion pre-viability still be constitutional so long as it does not pose a substantial obstacle to a safe abortion?
Roe has collapsed in Texas, and that's just the beginning.
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Second, was the Ninth Circuit wrong in not recognizing that Arizona’s claimed interests in preventing fetal pain, protecting against a significantly increased health risk to the mother, and upholding the integrity of the medical profession are sufficient to support banning abortions after 20 weeks when terminating the pregnancy is not necessary to avert death or serious health risk to the mother?
And finally, the State of Arizona is directly asking the Roberts Court whether, “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,” the Court should re-visit Roe v. Wade and its progeny entirely.
The Supreme Court could decide to grant Arizona’s request and review the decision, or it could decline to hear the case, leaving
in place the Ninth Circuit’s ruling that permanently blocks the law.