Pro-abortion Concerns Over 9th Circuit Case Striking Arizona Law

As previously posted, I still think the 9th Circuit was largely right as a matter of law to strike Arizona’s 20-week ban.  At least, the 9th Circuit seemed to be taking Casey at face value instead of getting creative, which is what we expect from lower courts.

It emphasizes the flawed reasoning underlying Casey to see distinguished scholars like Harvard’s I. Glenn Cohen expressing concerns over the hard line taken by the 9th Circuit in this case.  His basic point, made on previous occasions as well, is that Casey does not exclude the possibility that a state could develop some other compelling state interest (here, preventing fetal pain) aside from preservation of fetal life.  To the extent that the 9th Circuit communicated an unwillingness to hear the state out, the U.S. Supreme Court may want to correct its absolutist reading of Casey.

But no matter how many times you read the plurality opinion in Casey, you’ll find that the Supreme Court was and is determined to use viability as the dividing line, before which the states are not permitted to institute a ban on abortions.  In other words, it would have made no difference had the state in Casey articulated some additional interest aside from preservation of life.  Consider these three underpinnings, from the first section of the plurality opinion in Casey:

It must be stated at the outset and with clarity that Roe‘s  essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

If we take these words at face value, as the 9th Circuit did here, the Roe-Casey line of cases will need to be functionally discarded before states will be permitted to cross the viability threshold and impose an outright, Arizona-like ban.

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