The Supreme Court’s decision this morning denying review in the Arizona abortion case, Horne v. Isaacson, is extremely disappointing to defenders of life in the womb and of the health of the women nurturing it. Based on increasingly compelling medical evidence that an unborn child feels pain during prior to 20 weeks, and that there is an exponential increase in risk to the mother’s health in late-term abortions, the Arizona legislature last year imposed restrictions on abortions after 20 weeks, as twelve other states and the U.S. House of Representatives have done. The district court upheld Arizona’s law on the basis of the most recent Supreme Court precedent, but the Ninth Circuit invalidated the law, and the Supreme Court’s decision denying review leaves that decision in place — for now.
Significantly, the pro-abortion organizations that challenged the Arizona law have deliberately not challenged similar laws in states that are located in other federal-appellate-court circuits. The first of these “20-week fetal pain” statutes was adopted in Nebraska in 2010, for example, yet Planned Parenthood in Nebraska announced shortly after the law was passed that it would not challenge it. Nebraska is in the Eighth Circuit. Georgia’s law was challenged only on state law grounds, thus avoiding a federal constitutional challenge and potential decision by the Eleventh Circuit upholding the statute. And most recently, the 20-week provision of the Texas statute, passed last year over the widely publicized filibuster by Wendy Davis, was not part of the lawsuit brought by abortion advocates challenging other provisions of the Texas law. As one news account noted, there was “a strategic reason to avoid challenging that [20-week] ban. . . . [A] Texas challenge would go to the conservative Fifth Circuit. Not only would that court potentially uphold the law . . . the combination of decisions would create a split in the circuits that would make the Supreme Court likelier to hear it.”
Why are these cases important, and why will the Supreme Court eventually have to confront the issues presented by them? Well, the evidence that the risk to the health of the mother increases exponentially with every passing week for abortions late in pregnancy should give pause to any but the most doctrinaire advocates of abortion on demand. And the evidence that an unborn child feels pain really gives lie to the claim, oft-repeated since Roe v. Wade was decided 41 years ago, that there is no child there, only tissue or a clump of cells. The science is forcing our society to grapple with the fundamental immorality of the abortion on demand that was unleashed by Roe and its companion case, Doe v. Bolton. Today, the United States is one of only four nations in the world that allows for abortion on demand at any time during pregnancy. We’re in the company of those great paragons of moral virtue and human rights, North Korea and China. But the states continue to press the issue because they recognize what the Supreme Court in Roe seems to have forgotten — government has a deep moral obligation to protect the most vulnerable among us. A society that refuses to do that will become hardened to human life in other areas as well.
— John C. Eastman, the Henry Salvatori Professor of Law and Community Service at Chapman University’s Dale E. Fowler School of Law, is the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, in which capacity he served as lead counsel for Arizona in Horne v. Isaacson.