In a brief order, the justice rejected a bid by Maricopa County Attorney Bill Montgomery to review an appellate court ruling concluding the 2012 law is likely unconstitutional. The justices gave no reason for their decision.
The Arizona law made it a crime for a doctor to perform an abortion on a woman who is beyond the 19th week of pregnancy. The only exceptions are when necessary to prevent a woman’s death or “substantial and irreversible impairment of a major bodily function.”
Last year, however, the 9th Circuit said the law is unenforceable. The judges said Supreme Court precedents have made it clear that women have an absolute right to terminate a pregnancy at any time prior to viability, something that does not occur until around the 23 or 24th week.
Montgomery, however, contended Arizona lawmakers have a legitimate interest in stepping in.
He cited testimony — disputed by some — that a fetus can feel pain at 20 weeks. Montgomery also said the procedure has an increased risk to the mother after that point.
Appellate Judge Marsh Berzon, writing for the 9th Circuit, said all that is legally irrelevant.
“A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable,” she wrote. “A prohibition on the exercise of that right is per se unconstitutional.”
In a concurring opinion, Judge Andrew Kleinfeld brushed aside the measure’s stated interest in protecting a woman’s health as a reason to keep her from getting an abortion at or after 20 weeks.
“People are free to do many things to their health, such as surgery to improve their quality of life but unnecessary to preserve life,” Kleinfeld wrote. “There appears to be no authority for making an exception to this general liberty regarding one’s own health for abortion.”
The ruling was cheered by Nancy Northup, president of the Center for Reproductive Rights, which represented several Arizona doctors who had challenged the law. She said the high court, by its action, affirmed the 9th Circuit’s “sound decision that Arizona’s abortion ban is clearly unconstitutional under long-standing precedent.”
She also noted that the ruling likely had broader implications, as lawmakers in several other states have approved similar measures.
“Women should not be forced to run to court, year after year, in state after state, to protect their constitutional rights and access to critical health care,” Northup said in a prepared statement.
The ruling also shows the justices were not interested in using this case to revisit — and potentially alter or even void — the historic 1973 precedent set in Roe v. Wade which first spelled out a right to terminate a pregnancy.
The Arizona law comes as close as anything brushing up against that ruling the court has recently considered.