The following comes from an Oct. 24 posting on scotusblog.com.
In a wave of new laws enacted across the country, foes of abortion are pushing a common goal: to ban the termination of pregnancy at earlier stages than the Supreme Court has previously allowed. The first new case seeking to test whether the Court will go along with that campaign has been filed, and could be faced by the Justices later this year. A response to that case by abortion supporters is now due on November 29.
The new case, Horne v. Isaacson (docket 13-402), is from Arizona, and the 2012 law at stake would prohibit a woman from having an abortion at twenty weeks or later in pregnancy — three or four weeks before the commonly accepted point at which a fetus could survive if born alive (that is, the point of fetal “viability”). The Court has never allowed a ban on the woman’s choice to seek an abortion before her fetus was viable, and that line has held since 1973, when the decision in Roe v. Wade first recognized a constitutional right to end a pregnancy.
The new Arizona case, though, is an attempt to test how firm that constitutional line is. The basic argument the law’s supporters have made is that the twenty-week line in the Arizona law is designed to fit into a space allowed by the Supreme Court, between banning abortion and regulating abortion methods.
The state law is not a total ban, the argument goes, because abortions after twenty weeks are allowed if the doctor finds it necessary to prevent death or a grave health emergency. And, the law’s backers say, it is a regulation of abortion because the aim is to protect fetuses from feeling pain, which they are said to do before twenty weeks, and to protect women’s health because “late-term” abortions are hazardous to their health.
In the Supreme Court’s most recent ruling on an abortion method, in Gonzales v. Carhart in 2007, the Court majority relied upon that very distinction as it upheld a federal ban on the method known as a ”partial-birth abortion.” There, the Court repeated its view that states may not flatly ban all abortions before fetal viability, but also declared that states have a legitimate interest in regulating abortion throughout pregnancy in ways that show respect for the unborn fetus as a potential human being….
The Court will not act on the Arizona case until after the doctors who challenged the 2012 law have a chance to respond. Under the current schedule, which could be lengthened, that response is due on November 29. If the doctors answer by then or not long after that, the Court could still grant the case and decide it during the current Term.
The Court already has granted review of two abortion-related cases, but neither poses a direct challenge to the Court’s prior precedents on a woman’s right to choose. Rather, those cases are about regulating anti-abortion demonstrations at clinics (McCullen v. Coakley) and the extent of state power to regulate abortion by uses of drugs rather than surgery (Cline v. Oklahoma Coalition for Reproductive Justice).
The McCullen case has not yet been scheduled for oral argument, but probably will be heard in January. The Cline case will not move forward in the Court until after the Oklahoma Supreme Court answers questions submitted to it by the Justices about the scope of the state law at issue in the case. There is no deadline for the state court to reply.
To read the entire posting, click here.