Yesterday, the 9th Circuit Court of Appeals – arguably the most liberal federal court in the nation – issued an injunction for Arizona’s law restricting abortions after 20 weeks. Reuters reports that the law was designed to go into effect today but now will await a review this fall by the 9th Circuit. The injunction is only temporary at this time, and the court has agreed to speed up its review so that the law can be evaluated in a timely manner.
U.S. District Judge James Teilborg ruled mere days ago to uphold the Arizona law, in part because the law is an allowable restriction, not a ban:
Teilborg said the Arizona law regulates rather than bans abortions between 20 weeks and viability because of exceptions to prevent a pregnant woman’s death or to avoid a serious risk to a major bodily function.
The Associated Press reports:
Abortion-rights groups appealed U.S. District Judge James Teilborg’s ruling that the ban is constitutional, partly because of concerns about health of women and possible pain for fetuses.
The case centers on whether the ban violates U.S. Supreme Court rulings that states cannot prohibit abortion before a fetus is able to survive outside the womb. That’s generally considered to be about 24 weeks. Normal pregnancies run about 40 weeks. …
Attorneys on both sides of the issue said courts haven’t blocked 20-week bans before. Arizona is among 10 states to enact types of 20-week bans.
Indeed, evidence proves that second- and third-trimester abortions are more unsafe for women, and most experts conclusively agree that an unborn child can feel pain by 20 weeks. Some experts point to the experience of pain earlier – perhaps even as early as 5.5 weeks.
J. Margaret Datiles, of the Culture of Life Foundation, describes medical opinions on fetal pain in an article entitled “Fetal Pain Legislation: Women Deserve to Know.” (Ms. Datiles’ claims are sourced in the article.)
That a fetus can feel pain is an accepted medical fact. However, the question of when a fetus can experience pain has been the subject of some debate over the last two decades. The accepted medical consensus is that the sensory connections for feeling pain are present at 20 weeks gestation. In fact, there is a steadily increasing body of medical evidence and literature supporting the conclusion that a fetus may feel pain from around 11 to 13 weeks, or even as early as 5.5 weeks. Indeed, there is some evidence that fetal suffering may actually be more intense due to the uneven maturation of fetal neurophysiology. A British survey of neuroscientists showed that 80% of the neuroscientists participating in the survey felt that pain relief should be given to a fetus for abortions after 11 weeks gestation.
However, despite clear evidence demonstrating an increased danger to women and the presence of fetal pain, the 9th Circuit has temporarily halted Arizona’s law that could easily save hundreds – if not thousands – of lives. One issue that the eventual arguments before the court will center on is the state’s ability to ban abortions before viability. Viability commonly exists between 22 and 24 weeks, but the time at which an unborn child is able to survive outside the womb continues to move earlier. In fact, “Miracle Baby” Noelle Aguiar was the size of a 20-week-old when she was born and saved at 27 weeks. (Noelle had stopped growing in her mother’s womb due to pregnancy complications and was not expected to survive.) Medical science continues to advance rapidly, and so does the age at which unborn babies are viable.
Despite the setback from this court, Steve Aden of Alliance Defending Freedom has hope that the 9th Circuit will uphold Arizona’s law after the arguments this fall:
Though the 9th Circuit’s stay is regrettable, all it has done is give itself time to fully consider the case. Once it does, it should see the merits of the district court’s decision and uphold Arizona’s law.