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Wednesday, May 22, 2013

9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion

Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona's ban on abortion at 20 weeks. As the court described the statute:

The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:

A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.

 B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.

 The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).

After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don' t pretend to be disinterested.

Judge Berzon's opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat "paint-by-numbers" case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.

That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:

The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.

Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.

These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.

Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.

By contrast, I think Judge Kleinfeld's concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:

 

1. On pp. 39-40, Viability is a bad line from a normative and constitutional perspective but it is one we are stuck with.

2. Even though we think the science is against finding fetal pain in the meaningful sense (the experience of pain), as we worried courts might, he seem inclined to give significant deference to the legislature on this point (page 43).

3. If the conflicting science really did bear out the fact of fetal pain, the state could require fetal anesthesia as its regulation rather than banning these abortions altogether (as he puts it on pp.36-37 "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"). We said as much, so clearly *I* think that is right, although his opinion does not tangle with a hard point we raised in the article of whether the statute should be seen as aiming to prevent pain to a fetus versus treating the capacity to feel pain as a marker of personhood.

4. Even if fetal pain is real and unavoidable, that does not mean the Constitution permits the state to weigh the prevention of that state above a woman's right of bodily integrity. Kleinfeld puts the point at once a little less forcefully and much more graphically than we did on page 43: "But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open[] up the scissors [and stick in] a high-powered suction tube into the opening, and suck[] the baby’s brains out” was not enough in Gonzales to justify a complete prohibition."

What happens next? Rehearing en banc is possible but my guess is it won't happen. I also do not think the S. Ct will take cert at this stage, and will instead wait for a Circuit split or at least another one of these cases to make it to the Circuit stage before doing so. That said it does worry me in terms of the likelihood of a cert grant that Judge Berzon's opinion makes so much of the idea that viability is an ABSOLUTE dividing line established by the Supreme Court's prior precedent, a view I could easily see several Justices wanting to "correct".

- I. Glenn Cohen

Posted by Ivan Cohen on May 22, 2013 at 11:39 AM in Constitutional thoughts, Gender | Permalink

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Viability is the line partially for pragmatic reasons. It is a rough line, but for the reasons cited by Casey and Blackmun's opinion in Webster, a fairly reasonable one. The viability line dropped a few months in forty years. A tiny fraction of abortions occur here. Other doctrinal lines are much more affected by changing times than that.

IF fetal pain exists, there very well might under Casey be room to not ban, but address the issue. The death penalty reference on the point (see also, Alito's concurrence in Baze -- any rule there cannot in practice result in a de facto ban) is on point. Casey allows concern for fetal life but only w/o an undue burden. A ban is that.

And, if the presence of the pain is questionable, more the reason to hold against a ban. Casey as interpreted by the Roberts Court will give broad legislative discretion here (see Gonzalez -- exceptions were allowed, but dubious "legislative facts" accepted).

Still, the case is somewhat simple in that it DOES involve a ban. It is not the role of a lower court to question USSC precedent though a concurring or dissenting opinion might do so separately. So, I don't expect it to only follow the viability line with regret. Also, it is not its role to look beyond the law and advise about other sorts of laws and how they might be different. But, it is reasonable for others to do so. So, the OP is appreciated.

Posted by: Joe | May 22, 2013 5:22:29 PM

This comes from someone who knows little about abortion litigation. I understand from the post that a legislature can't decide that 20 weeks is an absolute cut-off based on viability considerations, because doctors make that call in individual cases. Are all fixed cut-offs (22 weeks, 24 weeks, etc.) unconstitutional under this logic? Or is there some point at which a legislature can hold that fetuses are viable as a categorical matter?

Posted by: Chris Lund | May 22, 2013 6:29:55 PM

Chris,
Legislatures cannot determine on their own when viability obtains. Viability is said to occur at around 24 weeks, but at that time there is only a 50% chance of fetal survival if birth occurs then. What this means is that the viability date (appx. 24 weeks), set forth in Roe, is a best estimate that ensures some over- and some underinclusiveness, but is also necessary for both jurisprudential predictability and for balancing the interests of the woman to bodily autonomy and of the fetus to potential life. One reason that a 20-week cutoff is unconstitutional is that there is virtually no likelihood of the fetus surviving if birth occurs then. In other words, there's clearly no viability at 20 weeks.

Posted by: Steven R. Morrison | May 22, 2013 6:56:11 PM

The question posed in the comments was addressed to some degree in Colautti v. Franklin (1979) but realistically we should remember that one purpose of these laws is to try to change precedent to some degree.

Posted by: Joe | May 22, 2013 9:48:40 PM

Thanks to all.
First to Joe's first comment. On viability, this is what Dr. Sayeed and I had to say in the paper.
--
Unfortunately, the concept of viability itself remains subject to confusion. [FN13] Like the Supreme Court, our societal normative tendency has been to assign a cutoff for fetal viability based on estimation of gestational age alone; however, we now know that other factors such as sex, birth weight, and maternal exposure to steroids affect probabilities of long-term neonatal survival. [FN14] Other things being equal, extremely premature female newborns generally have better survival odds than their male counterparts. More importantly, clinical definitions of viability reflect a complex amalgam of prevailing medical and socio-cultural attitudes of a particular society; thus, in the U.S. and the U.K., few neonates are resuscitated below 23 weeks gestation by LMP, whereas in the Netherlands, that age rises to 25 by LMP. [FN15] By contrast, in Japan, more neonates born above 22 weeks by LMP are resuscitated. [FN16] Regardless of threshold, because in aggregate so few neonates are resuscitated at or near 20 weeks “postfertilization” anywhere in the world (22 weeks by LMP), we do not really know how many of those extremely immature neonates could survive. [FN17] The most reliable available published data suggests a survival to discharge range between 1% and 20%. [FN18]
*237 Working clinical definitions of viability involve human interpretation of statistical probabilities that are typically applied to a class of about-to-be-born fetuses. That is, they are not individual patient-specific, and as such, also likely (and in some cases subconsciously) represent a collective consensus about scarce resource allocation. As our chances of success diminish, it becomes less compelling to offer an intervention. Long-term survival data alone is not all that informs collective viability thresholds; a heavy majority of survivors born below 23 weeks gestation by LMP will sustain significant permanent cognitive and physical disabilities and this no doubt affects our interpretation of where to draw the line.
The fact that different viability thresholds exist in different regions of the world let alone different regions within the United States suggests that conscientious people might reasonably disagree about what percentage chance of survival (with or without long-term disabilities) is sufficient to warrant an attempt at newborn rescue. Put differently, given what data we possess on mortality and morbidity for extremely premature neonates, few obstetricians or neonatologists would advocate that we create a uniform policy of attempting resuscitation on every fetus born at or above 20 weeks postfertilization (using the Nebraska statutory language).
In the abortion context, we suggest that legislative attention on viability potentiates a false sense of “fetal security” which can be illustrated by putting the new Nebraska law into operation. Imagine two pregnant women at an Omaha clinic who both desire an abortion but who do not qualify for the highly restrictive medical emergency exception. Both women are determined by LMP to carry fetuses at 22 weeks and five days with a reasonable margin of error of plus or minus five days (note: even this degree of precision is often not available). Both women are told the provider is outlawed from performing the procedure. The first women leaves discouraged. The second woman, after the shock of hearing the news, goes into active, uncontrollable labor and within an hour proceeds to deliver an extremely premature newborn. The woman decides the best thing for her child, given such long odds, is to direct care toward maximizing comfort and ensuring dignity during the dying process. This palliative choice is respected by her providers because in the U.S. pediatrics community, there is generally consensus that neonates born below 23 weeks by LMP should not be resuscitated given their poor chance of survival without significant disability.
We highlight this clinically asymmetric outcome to emphasize that legally constructed thresholds of viability, while in the Supreme Court's mind the only “workable” solution, should not be mistaken to ensure some absolute protection for about-to-be born fetuses. In practice, fetuses that cannot lawfully be aborted because they have just barely crossed a legislatively determined definition of viability are routinely and intentionally allowed to die shortly after birth despite having a small statistical chance of survival. At least theoretically, this does provide a loophole (albeit unattractive, much like back alleys) for pregnant women, who cannot obtain an abortion at or beyond 20 weeks post-fertilization but who also do not desire to have a child, to self-induce extremely premature labor and only present to the hospital when it is beyond the point of controlling and immediate delivery is required.
The normative question that logically follows from the law's continued endorsement of viability as the basic trigger for restricting a woman's abortion right is whether we then ought to restrict parental liberty to refuse potentially life-sustaining therapy (or provider discretion to offer the same) for a baby born who is possibly viable based on the legislative definition. Nothing is mentioned in the Nebraska law about potential obligations of physicians poised to attempt a neonatal resuscitation in cases of birth at or just after 20 weeks postfertilization (22 weeks by LMP). The statute does, however, discourage any prenatal actions that have “an intention other than to increase the probability of a live birth,” or “to preserve the life or health of the child after live birth.”
--
Not in the paper by my own addition: From a normative POV, if one views abortion as a 'right to disconnect' or 'bodily integrity' concept, one might think that it is AFTER viability that women should be allowed to have fetuses removed on the idea that it is at this point they can (by definition) live on their own. That makes the fact that this is precisely what you cannot do post-viability all the more mysterious. Here it is useful to distinguish abortion as a right to disconnect/remove versus a right to end the life of a fetus. I discuss some of these issues and their implication for preembryo destruction in The Constitution and the Rights Not to Procreate, 60 Stanford L. Rev. 1135 (2008) http://ssrn.com/abstract=1114806

Posted by: I. Glenn Cohen | May 23, 2013 3:14:10 PM

A lot of government resources and time is being wasted on an issue that can not be won by any side. Each side to the abortion questions has strong reasons and good reasons. There can not be a winner. Lets us all exist with with our beliefs and let it be.

Posted by: Sherry | May 23, 2013 9:14:07 PM

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