For such a hotly-debated topic, the law regarding bans and burdens on abortion hasn’t changed much. Any ban or undue burden on pre-viability abortions is unconstitutional per the Supreme Court’s holdings in Roe, Casey, and Gonzales. Since 1973, the bright line rule that a woman’s right to privacy trumps the state’s interest in “the potentiality of human life” is been repeatedly reaffirmed by the Supreme Court and the Circuit Courts of Appeal, despite many chances to modify or reject that rule.
Last year, Arizona passed H.B. 2036, which prohibited physicians from performing abortions on any fetus with a gestational age of twenty weeks or later, absent some medical emergency endangering the life of the mother. This was in addition to an existing law that prohibited abortions (absent medical emergency) at or after the point of viability.
Though the District Court upheld the law as a "restriction, not a ban," the Ninth Circuit disagreed and held that the long line of precedent doomed the law, despite the lawmakers' arguments that abortions after twenty weeks are riskier and that at twenty weeks, there is evidence that the fetus can feel pain.
Viability is Still the Benchmark
In Roe v. Wade, the court held that pre-viability bans on abortion were unconstitutional, but set amount of allowable restriction by trimester. By 1994, advances in medicine necessitated abandonment of the trimester framework in Planned Parenthood v. Casey, but the viability benchmark remained, and was reaffirmed in 2006 in Gonzales v. Carhart. The Ninth Circuit discussed the evolution of abortion jurisprudence thorough these cases, as well as multiple Ninth Circuit cases, in holding that this case was controlled by precedent.
A Compelled Yet Reluctant Concurrence
Despite multiple revealing comparisons to the death penalty, and an emphasis on Arizona's assertion that twenty-week-old fetuses can feel pain, Judge Kleinfeld concurred in the majority's opinion because all parties conceded that a twenty-week-old fetus is unviable, stating:
[C]onvicts sentenced to death have committed horrendous crimes, but fetuses have committed no crimes. But the analogy applies to the extent that regardless of the objections we may have, a lower court is bound to apply Supreme Court authority, which allows executions and requires states to permit abortions. And under the authority by which we, and the state legislatures, are bound, the Arizona prohibition is unconstitutional.
This Was a Ban, Not a Regulation
The law might've stood had it been a reasonable regulation on abortions at or after twenty weeks. Laws that have the "incidental effect of making it more difficult or more expensive to procure an abortion" are not unconstitutional. This was no incidental effect, however. The law's stated purpose was to "[p]rohibit a woman from electing abortion once the fetus reaches twenty weeks gestational age," and even with an exception for the mother's health, it amounts to a ban, not a constitutionally-permissible regulation.