Today, the Ninth Circuit Court of Appeals struck down Arizona’s ban on abortions performed after the 20th week of pregnancy. The state, one of nine to enact such a ban within the past two years, allowed no exceptions other than medical emergencies or the need to prevent the woman’s death or “irreversible impairment of a major bodily function.” Under the precedent set by the Supreme Court in Roe v. Wade, and reinterpreted in Planned Parenthood v. Casey, restrictions imposing an “undue burden” before fetal viability (around the 24th week) violate the Fourteenth Amendment’s Due Process Clause.
Arizona was not unaware that lower courts applying Roe/Planned Parenthood would invalidate its statute. Indeed, the purpose behind this legislation was to offer the Supreme Court an opportunity to deliver a death blow to Roe (the outcome favored by anti-abortion activists), or at least to continue to chip away at it (the outcome favored by those anti-abortion officials who worry about precipitating an electoral backlash). You don’t write legislation directly at odds with a major legal precedent unless you wish to challenge that precedent. The Supreme Court could choose to hear abortion cases coming from other courts, but it might especially welcome the opportunity to address the ruling coming from its bete noire, the Ninth Circuit. For all you progressives who are disappointed with the Obama presidency on one front or another, here’s your chance to appreciate the fact that if a vacancy emerges on the Court between now and its next abortion case, it won’t be filled by Mitt Romney.