NRL News

Advocates for children with disabilities file brief in support of Arizona’s ban on aborting pain-capable unborn children

by | Nov 14, 2013

By Dave Andrusko

JeromeLejuenefoundLast week NRLC Director of State Legislation Mary Spaulding Balch, JD, wrote an in-depth, informative post about a “friend of the court” brief filed on behalf of the attorneys general of sixteen states. That brief argued that the United States Supreme Court should agree to decide whether it is constitutional to protect unborn children from abortion after the point at which substantial medical evidence demonstrates they are capable of feeling pain. ( See “16 State Attorneys General Urge U.S. Supreme Court to Take Case to Rule that Pain-Capable Unborn Children May Be Protected from Abortion”)

The 2012 law in question is Arizona’s and the case is known as “Horne v. Isaacson.”

The brief calls on the High Court to agree to consider overturning a ruling by the 9th Circuit Court of Appeals that struck down Arizona’s law. The Court of Appeals decision reversed a federal district court opinion that found a compelling state interest in protecting the lives of unborn children capable of feeling pain.

As Ms. Balch noted, the brief does an exquisite job of enumerating the many evidences that the unborn child can feel pain by 20 weeks; showing that the case has nationwide impact because other states are considering similar bills in addition to the ten states that already have passed the law; demonstrating that states have a “compelling interest” in protecting these children from abortion; and highlighting that the Supreme Court has yet to address the state’s interest as it relates to the issue of the pain of the unborn child.

Earlier this week Howard Fischer, who writes for Capitol Media Services, did a fine story on another dimension to the issues raised in “Horne v. Isaacson.” As he writes, “Three disability-rights groups are urging the U.S. Supreme Court to let Arizona enforce its ban on abortions at 20 weeks as a necessary safeguard against ‘postnatal eugenics.’”

Those three, represented by the Bioethics Defense Fund, are the Jérôme Lejeune Foundation USA, Saving Downs, and the International Down Syndrome Coalition. The brief addresses what it calls “disability-selective abortion.“

If you go to the website of the Bioethics Defense Fund you can access the “friend of the court” brief.

The brief argues that the “law reflects Arizona’s interest in limiting abortion of pain-capable unborn children.” Moreover

  • Physicians challenging the law confirm that the vast majority of disability-selective abortions occur after twenty weeks gestation, and amici organizations report that this is due to fear, lack of supportive information, and often pressure from misguided medical professionals.
  • This disability rights amicus brief highlights Arizona’s additional interests in protecting the integrity and ethics of the medical profession from engaging in eugenic decision making, and by disfavoring discriminatory abortion and even proposals for infanticide of unborn children identified as having a disability, in accord with the Americans with Disabilities Act and other federal law.
  • The brief explains that the U.S. Supreme Court’s abortion jurisprudence has not and should not protect disability-selective abortions.
  • The brief explains that the Planned Parenthood v. Casey opinion affirming Roe v. Wade was premised on a so-called right to decide “whether to bear or beget a child,” but that the U.S. Ninth Circuit panel erroneously broadened that opinion to give constitutional protection to the decision whether to bear or selectively abort this particular child based on a prenatal diagnosis of disability.
  • The dignity of a child does not change with a diagnosis of Down syndrome, cystic fibrosis, spina bifida, or any other health condition, as recognized by numerous U.N. resolutions.

Please join those who are following me on Twitter at Send your comments to

Categories: Judicial