The Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Tuesday that the Arizona law banning abortions at 20 weeks violates women's rights, making it "per se unconstitutional." The opinion, authored by Judge Marsha Berzon, focused on balancing fetal viability and a woman's right to medical autonomy. The state defended the statute [text, PDF] by arguing that it was not an outright ban because it permitted procedures in the event of a medical emergency. The court rejected this argument: "the state may not ... impose an undue burden on her [the mother's] choice through regulation. Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term." Citing a "long line of invariant" precedent, the court further held that the statute crossed the line from a permissible medical regulation to an outright ban on procedures during gestation. It was not convinced that gestation at 20 weeks produced fetuses that could be viable outside the womb. Viability is the medical threshold for state bans as determined by the Supreme Court in Roe v. Wade [opinion]. Because the law does not meet this threshold, the state's interest in protecting the fetus is subject to the woman's federal right of medical autonomy.
This ruling comes on the heels of several developments in controversial state abortion statutes. Last Friday a judge for the US District Court for the Eastern District of Arkansas [official website] temporarily blocked enforcement of a law banning abortions 12 weeks into a pregnancy [JURIST report]. In December a state judge in Georgia enjoined a law [JURIST report] banning doctors from providing abortions for women more than 20 weeks into gestation. Montana voters in November passed a referendum [JURIST report] requiring notice to parents of minors before a planned abortion procedure. Planned Parenthood [advocacy website] also sued Texas [JURIST report] in October claiming that its law preventing state funding from going to any clinics affiliated with providing abortions violates another state law.