The 9th U.S. Circuit Court of Appeals decision on May 21 striking down Arizona’s ban on abortions after 20-weeks of pregnancy came as no surprise to most who were involved in the case, although for differing reasons. And now sights are on an appeal to the U.S. Supreme Court.
The victors saw the ruling as a simple reaffirmation of long-standing U.S. Supreme Court precedent. The losers saw it as political bias of a liberal court that is often overturned.
But former Arizona Solicitor General Dave Cole, who argued the case for the state, said he’s not going to side with either of those positions. Cole also said he never thought it was a foregone conclusion the law would be struck down because Judge James Teilborg of U.S. District Court, whose decision to uphold the law was overturned, made detailed findings of fact and detailed legal conclusions.
Cole said he would have preferred for the court to have given more deference to Teilborg’s decision.
“I don’t think the 9th Circuit was playing politics. I will say they were openly hostile to our position, but you take that as it comes,” Cole said.
Cole, who left his position in January to teach at Phoenix School of Law, said he thinks it would be worth pursuing an appeal.
Arizona’s law banning abortion at 20 weeks amounts to a prohibition on abortion, not just a limitation, making it unconstitutional, the unanimous appeals panel ruled.
Judge Marsha Berzon, a President Clinton appointee, wrote that the U.S. Supreme Court has long established that states do not have a strong enough interest to support a ban on abortion before a baby is viable, or can survive outside the womb.
The decision overturns a 2012 U.S. District Court ruling upholding HB2036. The law is modeled after similar ones in other states and asserts that a baby in the womb can feel pain after 20 weeks, four weeks before the limit on when government can start regulating abortion as established by Roe v. Wade.
Previously, Teilborg, who is also a Clinton appointee, concluded that the Arizona law does not ban abortions that occur before viability, but limits some abortions between 20 and 24 weeks. Teilborg also found that Arizona presented credible evidence to show that a baby feels pain during an abortion at that stage.
The law’s sponsor, Sen. Kimberly Yee, R-Phoenix, is 20-weeks pregnant, and she spoke about the ruling at her desk on the Senate floor.
“There is no doubt in my mind [that] this child I’m currently carrying is a precious life, and at this stage and beyond, can, indeed, feel pain,” Yee said.
Appeals Judge Andrew Kleinfeld, a President Reagan appointee, wrote that he can’t outright dismiss the claims of the baby feeling pain and increased risks for mothers after 20 weeks pregnancy because the record in the case is undeveloped. But the claims also don’t support the statute “in the current state of constitutional law.”
Arizona was the sixth state to pass such a law, but the first to be challenged, mostly because medical doctors in other states who provide abortions weren’t willing to be plaintiffs. Pro-life supporters said before the 9th Circuit heard the case they expect it to make its way to the U.S. Supreme Court and eventually to cut into Roe v. Wade.
Cathi Herrod, president of Center for Arizona Policy, which pushed the legislation, said in a press release the court put pro-abortion ideology before the health and safety of women and unborn babies.
“This ruling is not surprising nor am I discouraged at the prospects of this important law ultimately being upheld,” she said. “The 9th Circuit Court is historically one of the most overturned appellate courts in the nation. Based on the facts of this case, I am confident that this court will be overturned once again.”
The lawsuit was filed by the American Civil Liberties Union and Center for Reproductive Rights on behalf of three Arizona doctors.
ACLU of Arizona Public Policy Director Anjali Abraham said the ruling wasn’t surprising because the law was clearly unconstitutional.
“[The court is] not getting into politics or liberal versus conservative or any of that,” Abraham said.
Abraham said she doesn’t tend to predict what the high court will do, but she acknowledged that it takes only four justices to agree to accept review of a case. There are currently four ideologically conservative justices on the court, Clarence Thomas, Samuel Alito, Antonin Scalia and John Roberts.