9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion

[Cross-Posted at Prawsfblawg]

Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona’s ban on abortion at 20 weeks. As the court described the statute:

The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:

A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.

 B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.

 The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).

After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don’ t pretend to be disinterested.

Judge Berzon’s opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat “paint-by-numbers” case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.

That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:

The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.

Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.

These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.

Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.

By contrast, I think Judge Kleinfeld’s concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:

1. On pp. 39-40, Viability is a bad line from a normative and constitutional perspective but it is one we are stuck with.

2. Even though we think the science is against finding fetal pain in the meaningful sense (the experience of pain), as we worried courts might, he seem inclined to give significant deference to the legislature on this point (page 43).

3. If the conflicting science really did bear out the fact of fetal pain, the state could require fetal anesthesia as its regulation rather than banning these abortions altogether (as he puts it on pp.36-37 “were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out”). We said as much, so clearly *I* think that is right, although his opinion does not tangle with a hard point we raised in the article of whether the statute should be seen as aiming to prevent pain to a fetus versus treating the capacity to feel pain as a marker of personhood.

4. Even if fetal pain is real and unavoidable, that does not mean the Constitution permits the state to weigh the prevention of that state above a woman’s right of bodily integrity. Kleinfeld puts the point at once a little less forcefully and much more graphically than we did on page 43: “But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open[] up the scissors [and stick in] a high-powered suction tube into the opening, and suck[] the baby’s brains out” was not enough in Gonzales to justify a complete prohibition.”

What happens next? Rehearing en banc is possible but my guess is it won’t happen. I also do not think the S. Ct will take cert at this stage, and will instead wait for a Circuit split or at least another one of these cases to make it to the Circuit stage before doing so. That said it does worry me in terms of the likelihood of a cert grant that Judge Berzon’s opinion makes so much of the idea that viability is an ABSOLUTE dividing line established by the Supreme Court’s prior precedent, a view I could easily see several Justices wanting to “correct”.

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

5 thoughts to “9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion”

  1. Terrific reflections on an important new case, Glenn. It’ll be interesting to see how other courts reason about the state’s putative interest in preventing fetal pain if challenges are brought in any of the eight other states that assert it as a justification for near-total bans on abortion before viability. As for the panel’s decision striking down the Arizona statute in this case, I second your predictions that the Ninth Circuit would decline any request to rehear it en banc and also that the Supreme Court would deny any petition for certiorari. And I agree with your suggestion that “the science is against finding fetal pain” whose prevention might be thought a compelling interest sufficient to restrict rights, draw suspect classifications, or regulate the content of speech.

    I’m skeptical, however, that the case law supports the alternative way that you propose courts might reasonably construe an asserted fetal pain interest like Arizona’s: namely, “that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.”

    The Supreme Court has never, to my knowledge, suggested that multiple and mutually reinforcing state interests, if not compelling themselves, could be “combined” to count as a compelling one. But the Court has several times declined to endorse this aggregated-interest approach, most recently, I believe, in the First Amendment context. See California Democratic Party v. Jones, 530 U.S. 567, 582-85 (2000). In the Fourteenth Amendment context too, Justice Thomas (in a separate opinion), explicitly rejected the aggregation approach, writing that “the combination of . . . ‘three essential elements’” said to comprise a “compelling interest,” “does not,” if “[n]one of these elements is [itself] compelling,” thereby “produce an interest any more compelling than that represented by each element independently.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 759-60 (2007) (Thomas, J., concurring).

    I’d be interested to learn of any doctrinal (or normative) reasons why non-compelling interests could (or should), under particular circumstances, or ever, be taken to add up or otherwise “combined” to constitute the canonical kind that the Court designates as “compelling.”

  2. Thanks Dov for the insightful comment (as always). Two points: (1) I think we agree (even if we hope not) that the Court could find the prevention of fetal pain as itself compelling standing alone. (2) As you note though we suggest that even if it does not find it compelling standing alone, it may be the case that in combination with the state’s interest in preserving fetal life will be compelling.
    The cases you cite are interesting and not ones I have applied my mind to before. If I were inclined to distinguish them (imagining myself as a lawyer for those seeking to uphold the statute) here is what I might say: Thomas’ concurrence is just that. While California Democratic does NOT aggregate the various offered compelling interests to make them compelling, neither does it say that such interests could not y be aggregated in an appropriate case. Moreover, the language is dictum because on page 585 the Court writes “Finally, we may observe that even if all these state interests were compelling ones, Proposition 198 is not a narrowly tailored means of furthering them.” Finally, even if we took these cases to say what you suggest, perhaps one might draw a distinction based on the fact that the interest in preserving fetal life IS actually compelling, but just not compelling pre-viability, so not compelling *yet.* Perhaps one might suggest that this distinguishes these other cases: that aggregating interests cannot transform a non-compelling interest into a compelling one but it might *accelerate* when a compelling interest attaches?
    Do I find any of that convincing…not so much. Does it pass the smell test such that a Court inclined to rule that way could say it? I suspect yes. What do you think.

  3. You’re right, Glenn, that the anti-aggregation passage from Cal. Dental are, as dicta, no more binding than the consonant passages from Justice Thomas’s concurrence in Parents Involved. I agree that those citations don’t rule out the possibility that non-compelling interests could, consistent with current doctrine, be added up to make a compelling one. But the dicta from Cal. Dental seems to me persuasive authority against this interest-aggregation thesis in the absence of any case (I couldn’t find any) that’s even gestured favorably toward that thesis, and given the many cases have declined to so aggregate.

    I’m intrigued by your proposal to refine the aggregation thesis as it applies to the dynamic interest in fetal preservation that the Supreme Court has held “grows” in strength over the course of “fetal development” until it “has sufficient force” “at a later point” (heretofore held to be viability) that even fundamental rights “can be restricted” in its service. Planned Parenthood v. Casey, 505 U.S. 833, 869 (1992). As I understand your proposed refinement, it conceives of previability fetal pain prevention, not as a separate concern adding onto the not-yet-compelling preservation interest, but rather as accelerating the stage at which that preservation interest itself becomes compelling.

    Your refinement isn’t just provocative, but coheres with I think the most plausible account of why the regulatory force of the fetal preservation interest “grows.” What in my view best explains the mounting strength of the state’s preservation interest is the fetus’s acquisition of some undefined range of mental and physical capacities as it develops toward birth. On this developmental understanding of the preservation interest, the question would be whether a scientifically warranted finding of fetal pain would propel the growth of that interest sufficient to make it compelling (even if, as you and Judge Kleinfeld point out, the pain component of that interest could at any rate be satisfied by measures short of a ban on abortion, such as the use of fetal anesthesia).

    I am dubious that concerns about previability pain prevention could “accelerate” the preservation interest to that level. Certainly Justice Stevens (a proponent of the developmental approach) didn’t think so. Concurring for himself only in Thornburgh v. American College of Obstetricians & Gynecologists, he argued that the preservation interest “increases progressively and dramatically as the organism’s capacity to feel pain, to experience pleasure, to survive and to react to its surroundings increases day by day.” 476 U.S. 747, 778 (1986) (Stevens, J., concurring). Writing separately again three years later in Webster v. Reproductive Health Services, he clarified that the state’s preservation interest in “protecting” the unborn “from physical pain or mental anguish,” by virtue of its actual “capacity for such suffering,” would be merely “valid,” and still-not-compelling, even as it applies “respecting a developed fetus.” 492 U.S. 490, 569 (1989) (Stevens, J., concurring in part and dissenting in part).

    I’d be interested if you or others see doctrinal reason either to resist this developmental account of the preservation interest, or to suppose that concerns about fetal pain would, on that account, accelerate the preservation interest sufficient to make it compelling. It doesn’t seem to me that a lawyer who wanted to make this argument would find much by way of support in analogies to either animal cruelty, see, e.g., United States v. Stevens, 130 S. Ct. 1577 (2010) (declining to hold that the government’s interest in preventing animal cruelty is sufficient to justify a ban on depictions of animal cruelty), or capital punishment. See Baze v. Rees, 553 U.S. 35, 47 (2008) (holding with respect to condemned persons, who are, unlike fetuses, afforded constitutional rights of their own, that the Eighth Amendment prohibition on cruel and unusual punishment does not forbid state execution practices that inflict of the “‘unnecessary risk’ of pain,” but only those that incur a high likelihood of “caus[ing] serious illness and needless suffering”).

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