Hot Docs: Ninth Circuit strikes down Arizona anti-abortion law

May 30, 2013

UltrasoundJudges are often found in the position of issuing decisions with which they do not agree on moral or ethical grounds, but are nonetheless bound by precedent.

Although some judges dutifully follow the law laid out before them in spite of these objections, other judges openly deviate from established precedent, potentially leading to the conclusion that they are relying more heavily on their personal viewpoints than actual state of the law.

A case out of the Ninth District provides examples of both types of judges.

The case, Isaacson v. Horne, began in April of 2012, when the state of Arizona passed H.B. 2036.

The law, among other things, prohibits physicians from performing abortions on pregnant women whose unborn child’s gestational age is twenty weeks or more, except in cases of medical emergencies.

Since Arizona law also prohibits anyone but a physician from performing an abortion, Arizona’s new abortion law effectively prohibits all abortions twenty weeks or later (except for medical emergencies).

A group of physicians challenged the law in July of 2012 on behalf of themselves and of their patients wishing to terminate pre-viability.

After the plaintiff physicians moved for a preliminary injunction and the defendants (representatives of state and local Arizona governments and the Arizona Medical Board) moved to dismiss, the district court held a hearing on both motions.

After the hearing, without any prior notice to the parties, and on its own initiative, however, the district court retroactively consolidated the preliminary injunction hearing with a trial on the merits and issued a final decision denying all relief to the physicians.

Hot Doc: Isaacson v. Horne

Source: Thomson Reuters News & Insight – National Litigation

In upholding the law, the district court found that Supreme Court precedent that clearly establishes that “a State ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy’” pre-viability is “inapposite.”

Why?  Because, the district court wrote, “H.B. 2036 does not prohibit all abortions after 20 weeks gestational age;” it merely “regulates” them.

An abortion regulation on pre-viable fetuses is constitutional as long as it does not place an “undue burden” on women seeking them.  And the district court found that the law presented no such burden:

[W]hile H.B. 2036 may prompt a few women, who are considering abortion as an option, to make the ultimate decision earlier than they might otherwise have made it, H.B. 2036 is nonetheless constitutional because it does not “prohibit any woman from making the ultimate decision to terminate her pregnancy.”

The district court went on to state, among other things, that Arizona “has shown a legitimate interest in limiting abortions past 20 weeks gestational age,” since it has demonstrated that a fetus has “developed pain sensors all over its body” by that age.

On appeal, the Ninth Circuit reversed, roundly criticizing the district court’s opinion.

First, the Ninth Circuit took issue with the district court’s procedure in retroactively turning the motion hearing into a trial on the merits without advance notice to the parties (such can only be done with advance notice).

Next, the appeals court took issue with the district court’s conclusion that H.B. 2036 is a regulation, not a prohibition.  The Ninth Circuit had the opposite conclusion, which made any “undue burden” analysis unnecessary since all pre-viability abortion prohibitions are per se unconstitutional.

Finally, the appeals court noted that any ability of fetuses at 20 weeks of age to feel pain does not give the state any overriding interest to prohibit abortions before viability.

When reading both the district court’s opinion and the Ninth Circuit’s, you get the distinct impression that the district court judge already had his mind made up, and twisted the law to fit that predetermined conclusion.

The Ninth Circuit’s opinion makes it appear as though the law obviously and “invariantly” holds Arizona’s law as unconstitutional.  The district court opinion makes numerous references to the value of the life of the unborn child, and uses other language that makes it resemble pro-life literature.

In case it isn’t clear at this point, the district court judge is seemingly an example of such a judge that issues a ruling that favors personal views over the law, as mentioned above.

Further making this point is the concurrence by Senior Ninth Circuit Judge Andrew Kleinfeld, which begins with the sentence: “The current state of the law compels me to concur.”

The concurrence repeatedly uses the word “kill” when referring to abortions, makes particular note of the issue of pain felt by 20-week-old fetuses, and provides graphic detail of an abortion procedure.

Finally, the concurrence also likens abortions to the death penalty – with the principal difference being that “convicts sentenced to death have committed horrendous crimes, but fetuses have committed no crimes.”

Clearly, Judge Kleinfeld is morally opposed to abortion – and makes no secret of that fact.  However, his moral objections did not prevent him from fulfilling his duties as a judge to uphold the law.

Whether you agree with Judge Kleinfeld’s views on abortions, he must be applauded nonetheless for faithfully applying the law in spite of these views.