Isaacson v. Horne

A law prohibiting abortion at twenty weeks gestation, which is earlier than fetal viability, is unconstitutional because Supreme Court precedent affords women the constitutional right to choose to terminate a pregnancy before fetal viability.

Section 7 of Arizona House Bill 2036 (“H.B. 2036”) forbade abortion at twenty weeks gestation, which is earlier than fetal viability, except in a medical emergency. A fetus is viable when its life can be maintained outside the womb, the earliest being twenty-three or twenty-four weeks. Roe v. Wade established that any prohibition or undue burden on a woman's right to choose to have an abortion before viability is per se unconstitutional. A state, however, may regulate the "mode and manner" of abortions prior to fetal viability. Three obstetrician-gynecologists (“Plaintiffs”) who conducted abortions after twenty weeks but pre-viability sought a preliminary injunction, which the district court denied. In holding that the Plaintiffs’ facial challenge to Section 7 failed, the district court concluded that the Plaintiffs’ suit was in fact a facial challenge, that Section 7 “regulates, rather than prohibits, abortion at and after twenty weeks,” and that Section 7 did not create a “substantial obstacle to abortions.” The Ninth Circuit rejected Arizona's argument that the medical emergency exception transformed the law from a prohibition to a regulation because even with the medical emergency exception, a woman is still precluded from choosing an abortion after twenty weeks. A doctor's decision of whether an abortion is medically necessary is not the same as a woman exercising her constitutional right to have an abortion. Additionally, the district court erroneously applied the “undue burden” standard instead of the bright-line rule articulated in binding precedent that a state may not proscribe abortions before viability. Furthermore, a health exception “cannot save an unconstitutional prohibition” on a “woman’s right to choose to terminate her pregnancy before viability.” The panel noted that whether the suit was a facial or as-applied challenge to the statute had little importance to the resolution of the legal question. REVERSED.