Sixteen States Tell Supreme Court: Uphold Ban on Abortions After 20 Weeks

10/31/13.Sixteen States Tell Supreme Court: Uphold Ban on Abortions After 20 Weeks. Steven Ertelt, lifenews.com

“A group of 16 states have filed briefs with the U.S. Supreme Court this week that encourage the high court to reverse a federal appeals court decision overturning a ban the state of Arizona passed to ban abortions after 20 weeks because unborn children feel pain.

The states are among the parties that filed briefs asking the high court to reverse a U.S. Court of Appeals for the 9th Circuit decision against an Arizona law restricting non-emergency abortions after 20 weeks. Arizona legislators enacted the law based on evidence that shows children experience pain beginning at least at that stage and that women can experience increased physical risk and significant psychological trauma from late-term abortions.

Alliance Defending Freedom attorneys are co-counsel in the case, Horne v. Isaacson, along with Arizona Solicitor General Robert Ellman, Maricopa County Attorney William Montgomery, former U.S. Attorney General Edwin Meese III, John Eastman of the Center for Constitutional Jurisprudence, and attorneys with Americans United for Life. Last month, Montgomery and Arizona Attorney General Tom Horne petitioned the Supreme Court to hear the case.

“Every innocent life deserves to be protected,” said Alliance Defending Freedom Senior Counsel Casey Mattox. “Not only does this law protect children in the womb who experience horrific pain during a late-term abortion, it also protects mothers from the increased risk of physical harm and tremendous psychological consequences that come with late-term abortions.”

“As the numerous states and organizations who have filed briefs with the Supreme Court rightly argue, Arizona’s law is entirely reasonable and constitutional,” added lead counsel John Eastman, director of the Center for Constitutional Jurisprudence and one of nearly 2,300 attorneys allied with Alliance Defending Freedom. “We hope the Supreme Court accepts this invitation to revisit the extreme constraints Roe v. Wade imposed on the ability of states to respond to new medical knowledge and safeguard women’s health.”

“Numerous states have limited access to non-emergency abortions beyond 20 weeks to protect the health of the mother and ensure that babies at that stage of development are free from excruciating pain,” explained Alliance Defending Freedom Senior Counsel Steven H. Aden. “Arizona’s law is no less reasonable, as the briefs filed with the Supreme Court this week affirm.”

In addition to the brief filed by 16 states, the Supreme Court also received briefs from numerous medical associations, Down Syndrome advocacy organizations, pro-life advocacy groups, pregnancy resource center networks, women who have experienced the trauma of abortion, and others in support of the new law.

The ACLU sued to stop the law after legislators passed the bill to ban abortions after that period of time except in very rare cases of medical emergency. The bill also requires abortion facilities to allow women to have an ultrasound of their unborn baby at least 24 hours prior to having the abortion. In many cases women change their minds about a planned abortion after seeing the images of their developing child.

In July 2012, a federal judge in Arizona  issued a ruling upholding that state’s new law that bans abortions after 20 weeks of pregnancy. Then, the 9th U.S. Circuit Court of Appeals ruled that the law violates U.S. Supreme Court rulings on abortion, including Roe v. Wade. The ruling does not affect similar laws passed in other states except the law in Idaho, which is also covered under the jurisdiction of the appeals court.

Cathi Herrod, president of Center for Arizona Policy told LifeNews she was not surprised.

“This ruling is not surprising nor am I discouraged at the prospects of this important law ultimately being upheld,” she said. “The Ninth 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 Court put a pro-abortion ideology before the health and safety of women and preborn children. The Court held to the vague standard that abortions can only be limited based on whether the child is viable, even though they confessed viability is not a “fixed” point,” said Herrod. “Ultimately, as we’ve anticipated from the beginning, this case should be decided by the United States Supreme Court. Sadly, until that time, women and preborn children will suffer the consequences of this disappointing decision.”

From the appeals court decision: “The panel reversed the district court’s order denying declaratory and injunctive relief to plaintiffs and held that the Constitution does not permit the Arizona legislature to prohibit abortion beginning at twenty weeks gestation, before the fetus is viable.”

It added: “The panel held that under controlling Supreme Court precedent, Arizona may not deprive a woman of the choice to terminate her pregnancy at any point prior to viability. The panel held that Arizona House Bill 2036, enacted in April 2012, effects such a deprivation by prohibiting abortion from twenty weeks gestational age through fetal viability. The panel held that the twenty-week law is therefore unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe v. Wade, 410 U.S. 113 (1973), and ending with Gonzales v. Carhart, 550 U.S. 124 (2007).”

Judge James Teilborg’s ruling acknowledged prior Supreme Court rulings saying states may not prohibit abortions before viability. But he said the law “does not impose a substantial obstacle to previability abortions.” He said state’s have a legitimate reason to protect unborn children during that time.

“There is no question that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman,” he wrote, quoting from the Supreme Court case that upheld the federal ban on partial-birth abortions.

He also rejected pro-abortion arguments that the law prevents women from having abortions if the baby suffers from very severe abnormalities incompatible with life, saying evidence submitting court “stops short of claiming that there are any conditions that could only by diagnosed after 20 weeks that could not have been found before that time.”

“The court finds that it would be extremely rare to find a condition that could be diagnosed after 20 weeks that could not have been diagnosed earlier,” he wrote.

The judge also did not go along with pro-abortion arguments that a diagnosis of fetal abnormalities will not occur until after 20 weeks and, even if a mother is prevented from having an abortion in such a case, he said “such a situation cannot be the basis of the court’s decision in a facial challenge to the statute.”

One purpose of the bill was to prevent abortions when unborn children feel pain and the judge was sympathetic to the legislature’s intent, saying lawmakers cited “substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least 20 weeks gestational age.”

This bill, called “The Mother’s Health and Safety Act”:

  • Prohibits abortion after 20 weeks because of the safety risks to the mother and the pain endured by the preborn child
  • Ensures women have an ultrasound at least 24 hours prior to an abortion
  • Establishes an informed consent website which details the facts about fetal development, risks of abortion, and services available.
  • Requires doctors performing surgical abortions to have admitting privileges at a hospital within thirty miles of the abortion facility.
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