Paul Isaacson v. Tom Horne

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL A. ISAACSON, M.D.; WILLIAM No. 12-16670

CLEWELL, M.D.; HUGH MILLER,

M.D., D.C. No. Plaintiffs-Appellants, 2:12-cv-01501-

JAT

v.

TOM HORNE, Attorney General of OPINION Arizona, in his official capacity;

WILLIAM GERARD MONTGOMERY,

County Attorney for Maricopa County, in his official capacity; BARBARA LAWALL, County Attorney for Pima County, in her official capacity; ARIZONA MEDICAL BOARD; LISA WYNN, Executive Director of the Arizona Medical Board, in her official capacity, Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Argued and Submitted November 5, 2012—San Francisco, California

Filed May 21, 2013 Before: Mary M. Schroeder, Andrew J. Kleinfeld, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon; Concurrence by Judge Kleinfeld

SUMMARY*

Civil Rights

The panel reversed the district court’s order denying declaratory and injunctive relief to plaintiffs and held that the Constitution does not permit the Arizona legislature to…

concurring:

The current state of the law compels me to concur.

Arizona defends the statute on two grounds: that the risk to pregnant women is considerably greater after 20 weeks gestation, and that fetuses feel pain at least by 20 weeks. The State has presented substantial medical evidence to support its legislative findings on both points. The very undeveloped record affords no basis for rejecting these propositions. But they do not suffice to justify the statute in the current state of constitutional law. Were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out. 1 Gonzales v. Carhart similarly sug *1232 gested that if a particularly inhumane abortion procedure, removing the child from the uterus intact and then killing it after it had left the uterus and entered the vaginal canal, were “truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative.”…

*1217 OPINION

Our question is whether the Constitution permits the Arizona legislature to prohibit abortion beginning at twenty weeks gestation, before the fetus is viable. We hold that it does not.

Arizona House Bill 2036 (“H.B.2036” or “the Act”), enacted in April 2012, forbids, except in a medical emergency, abortion of a fetus determined to be of a gestational age of at least twenty weeks. Arizona law separately prohibits abortions after fetal viability unless necessary to preserve the pregnant woman’s life or health. See Ariz. Rev.Stat. § 36-2301.01(A)(l). The challenged provision in Section 7 of H.B.2036 (“Section 7” or “the twenty-week law”) 1 extends the abortion ban earlier in pregnancy, to the period between twenty weeks gestation and fetal viability. Because Section 7 deprives the women to whom it applies of the ultimate decision to terminate their pregnancies prior to fetal viability, it is unconstitutional under a long line of invariant Supreme Court precedents.

Since Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), the Supreme Court case law concerning the constitutional protection accorded women with respect to the decision whether to undergo an…