NRL News

9th Circuit panel strikes down Arizona abortion ban

by | May 21, 2013

By Dave Andrusko

Judge Marsha Berzon

Judge Marsha Berzon

Back in November NRL News Today ran a story headlined, “Skeptical Appeals Court Panel hears Arizona’s ‘Mother’s Health and Safety Act.’” You didn’t need to be an attorney to grasp that Judges Marsha Berzon, Mary Schroeder, and Andrew Kleinfeld were keen to strike down a law that bans abortion after 20 weeks of pregnancy (18 weeks fetal age) on medical evidence that the unborn can feel pain by that point, if not earlier.

So the panel’s unanimous decision today came as no surprise. Part of the ultra-liberal 9th U.S. Circuit Court of Appeals in San Francisco, the panel had peppered Maricopa County Attorney Bill Montgomery and State Solicitor General David Cole, who were defending House Bill 2036, signed into law by Arizona Gov. Jan Brewer in April 2012.

Defended by the New York-based Center for Reproductive Rights and the ACLU, three Arizona abortionists had immediately challenged the bill. In July U.S. District Judge James Teilborg upheld the law, which was supposed to take effect on August 2.

However on August 1, the appeals court issued an emergency injunction. Then on November 7, they “picked apart” (according to Reuters) the arguments made by the law’s defenders.

In their 44-page ruling released today, the panel went hither and yon but its argument boiled down to this: (Judge Berzon) “a woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable,” and therefore Judge Teilborg “erred in denying declaratory and injunctive relief and entering judgment in favor of the State.”

Both the panel and Judge Teilborg liberally referenced the 1992 Planned Parenthood v. Casey decision and the 2007 Gonzales v. Carhart decision which upheld the ban on partial-birth abortions. They came to diametrically opposed conclusions.

In his 15-page decision, Judge Teilborg first dispatched of the plaintiff’s assertion that H.B. 2036 imposes a substantial obstacle to previability abortions. Judge Teilborg went to the issue of whether “the State has a legitimate interest in prohibiting abortions past 20 weeks gestational age.” Among the interests the state of Arizona asserted was “to prevent abortions when the unborn child would feel the pain involved in an abortion.”

At that point he quoted from the High Court’s Gonzales v. Carhart decision, where the most common abortion technique that is used—the “D&E”—was explained in clinical but nonetheless disturbing terms. [The underlined text is underlined in Judge Teilborg decision.]

The surgical procedure referred to as “dilation and evacuation” or “D&E” is the usual abortion method in this trimester. Planned Parenthood, 320 F. Supp. 2d, at 960–961. Although individual techniques for performing D&E differ, the general steps are the same.

A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. Nat. Abortion Federation, supra, at 465; App. in No. 05–1382, at 61. The steps taken to cause dilation differ by physician and gestational age of the fetus. See, e.g., Carhart, 331 F. Supp. 2d, at 852, 856, 859, 862–865, 868, 870, 873–874, 876–877, 880, 883, 886. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less. Nat. Abortion Federation, supra, at 464–465; Planned Parenthood, supra, at 961.


After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. …

“Given the nature of D&Es,” Judge Teilborg wrote, “and the finding that the unborn child has developed pain sensors all over its body by 20 weeks gestational age, this Court concludes that the State has shown a legitimate interest in limiting abortions past 20 weeks gestational age.”

Categories: Judicial