The Supreme Court& decided today not to hear Arizona’s appeal in defense of its 20-week limit on abortion, but that doesn’t mean 20-week limits are unconstitutional. The Court simply declined to hear the case, and the Court (as is usual) issued no opinion explaining why. (In legal terms, the decision to decline to hear the appeal is not “precedential.” Lawyers can speculate as to the reason, and the most likely is that there was no “split” or “conflict” between different federal courts of appeal, which would require the Supreme Court’s reconciliation of the conflict.)
The Court thus leaves in place the Ninth Circuit’s 2012 ruling that a 20-week limit is per se unconstitutional on its face, because it violates the “viability rule” of Roe v. Wade and Planned Parenthood v. Casey. The Ninth Circuit’s ruling will apply, going forward, to states in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington).
Besides Arizona, at least 14 other states have a 20-week limit on the books (Alabama, Arkansas, Delaware, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, and Texas). Many of these are in force, and many have not been challenged in court (suggesting that perhaps these laws don’t threaten women’s health the way opponents claim).
In fact, Arizona’s law, and the court record compiled in the litigation by the Maricopa County Attorney’s Office, cited medical data showing the risks to women from late-term abortions, including the greatly increased rate of maternal mortality from abortion after the first trimester. Because of the continuing revelations about the horrors of late-term abortions and live-birth abortions, and the risks of late-term abortions to women and children, and the fact that 13 or more states have responded to the Court’s 2007 decision in Gonzales v. Carhart by passing 20-week limits, the Court’s action today is extremely disappointing.
With Roe, the Supreme Court assumed the role as the national policy maker on abortion — the highest court and the lower federal courts now control every aspect of every abortion law passed in every state, and the justices’ failure to hear the Arizona case leaves in place the sweep of the Court’s ruling in Roe that legalized abortion for any reason, at any time of pregnancy. That ruling isolates the U.S. as one of only four nations across the globe (with China, North Korea, and Canada) that allow abortion for any reason after fetal viability.
It’s been seven years since the justices heard an abortion case, and the Court has only heard three abortion cases since the Casey decision of 1992: Stenberg, Ayotte, and Gonzales. How does the Court think it can responsibly exercise its role as the national abortion-control board, and monitor abortion practices and conditions, and address horrible events like the Kermit Gosnell scandal, if it only hears cases every seven or ten years?
States outside the Ninth Circuit can and should enact 20-week limits to protect unborn life and protect women’s health. The Court has often “passed” on issues several times — six or seven times on the issue of flag salutes by school children — before addressing them. In light of the clear concern about late-term abortions the Court expressed in Gonzales, and their negative effect on children and women’s health, it should eventually address and uphold the five-month limits.
— Clark Forsythe is senior counsel for Americans United for Life and author of Abuse of Discretion: The Inside Story of Roe v. Wade.