Back in May, the 9th Circuit Court of Appeals struck down an Arizona law banning most abortions past 20-weeks gestational age. The 9th Circuit’s ruling was based on its understanding 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.
1. Did the Ninth Circuit correctly hold that the “viability” line from Roe v. Wade and Planned Parenthood v. Casey remains the only critical factor in determining constitutionality, to the exclusion of other significant governmental interests, or is Arizona’s post-twenty-week limitation facially valid because it does not pose a substantial obstacle to a safe abortion?
2. Did the Ninth Circuit err in declining to recognize that the State’s interests in preventing documented fetal pain, protecting against a significantly increased health risk to the mother, and upholding the integrity of the medical profession are sufficient to support limitations on abortion after twenty weeks gestational age when terminating the pregnancy is not necessary to avert death or serious health risk to the mother?
3. If the Ninth Circuit correctly held that its decision is compelled by this Court’s precedent in Roe v. Wade and its progeny, should those precedents be revisited in light of the recent, compelling evidence of fetal pain and significantly increased health risk to the mother for abortions performed after twenty weeks gestational age?
The ultimate success of this appeal–if the U.S. Supreme Court wants to hear it–will come down to whether the Court is willing to apply Gonzales v. Carhart, 550 U.S. 124 (2007), to this set of facts. Gonzales really broke on some level with the Roe/Casey line of reasoning and provides a great deal of support here.