The Arizona law struck down yesterday banned abortion past 20 weeks of pregnancy based, in part, on evidence that a fetus at that stage of development may feel pain. The 9th Circuit’s three-judge panel ruled that, under Casey v. Planned Parenthood, 505 U.S. 833 (1992), states cannot impose such a ban on abortions prior to viability, generally set at the 24-week mark.
Unfortunately, the ruling clearly follows under the constitutional framework established by the U.S. Supreme Court. The ruling’s legal reasoning simply demonstrates that Casey–and Roe before it–indeed establishes a hard-line framework under which states are not permitted to make even reasonable, popular public policy judgments to the extent that it “unduly” affects the right to a pre-viability abortion.
The public policy chosen by Arizona lawmakers was based on a basic policy assumption underlying myriad state policies, that pain itself is a bad thing, whether visited upon a person or any other feeling being. But the 9th Circuit is essentially correct; Casey is not built to incorporate reasonable public policy determinations. It is built to overrule them.
Had Arizona crafted a law to ban only certain “painful” procedures–perhaps by mandating a non-painful abortion procedure from 20 weeks on, I think the 9th Circuit would have been forced to approve. The case upholding the partial birth abortion ban, Gonzales v. Carhart, 550 U.S. 124 (2007), extended its reasoning into the pre-viability cases, using strong language to support a state’s interest in eliminating the brutality inherent in certain abortions. Under Gonzales, the availability of other abortion methods made the ban on partial-birth abortion something less-than-absolute and, therefore, not “undue.” This is hardly the solution anti-abortion factions want, but it’s an approach that take the movement further.