By Meaghan K Pedati, Law Student
The Ninth Circuit U.S. Court of Appeals granted a preliminary injunction against Arizona’s House Bill 2036, the Mother’s Health & Safety Act. The Mother’s Health & Safety Act was set to take effect on August 2nd; it bans abortions after twenty weeks of pregnancy. The preliminary injunction does not defeat the law; it merely means that that the law cannot be enforced until the appeals process is complete. The next step in the appeals process will not take place until October or November when an appeals court will hear the case. After the case is heard, the court could take weeks before issuing a decision. It is unlikely that a decision on the law will come before December.
The lawsuit against the Mother’s Health & Safety Act is result of action by the Center for Reproductive Rights and the American Civil Liberties Union which sued Arizona in July, challenging the bill’s constitutionality. When the case was first heard, a lower level federal district court found the law constitutional. The federal district court found that because an unborn child at twenty weeks has developed pain sensors, the state has a legitimate interest in limiting abortions past twenty weeks. Proof of a legitimate state interest is essential to upholding the law. The U.S. Supreme Court holds that a state is required to show a legitimate interest for the regulation. The meaning of legitimate interest is vague but leaves room for the state to show why the law is necessary. In Arizona, the state bases their interest largely on the mother’s health. Specially, the risk of complication during an abortion is considerably higher after twenty weeks.
The court, on appeal, will likely focus on the alleged burden this law would inflict on a mother. The complaint alleges that mothers will be forced to make an immediate decision as to whether or not to have an abortion thereby creating an undue hardship and obstacle on the woman. The law suit also criticizes the law’s limited and narrow medical emergency exception. This emergency exception does not contain an exception for women who are told their unborn child will not survive after birth. This well-defined medical emergency exception could help push this law to the U.S. Supreme Court as a direct challenge to Roe v. Wade and the legal meaning of viability.
Roe v. Wade holds that abortions may be performed until the unborn child is “viable.” Critics of the Arizona law claim the law bans abortions before viability. At the time of Roe, the common belief was that the earliest viable baby could be born at 23 weeks. If the U.S. Supreme Court did hear the case, the Court would be forced to reevaluate the time at which medicine defines a child viable. Since Roe, premature babies are being kept alive at a much younger age. And according the Court’s decision in Roe, that would mean an unborn baby is viable before 23 weeks, thereby affirming the constitutionality of the Mother’s Health & Safety Act.
Legal briefs for this case’s appeal are due in September and October. Steven Aden, an attorney for the Alliance Defending Freedom calls the Ninth Circuit decision “regrettable.” But Steven Aden, like Attorney Bill Montgomery, who defended the law during a hearing, is confident the law will be upheld on appeal.