When Supreme Court announces which cases it will take up for review, pro-abortion rights and anti-abortion activists alike hold their breath. This time, those who support the right to legal, safe abortion are sighing with relief now that the court has announced it will not take up the Arizona law that banned abortion after 20 weeks — but really 18 weeks post fertilization — leaving it blocked and unenforced.
That’s good news, and it is especially welcome now that state legislatures across the country are kicking off new legislative session, where many will be tempted to pass some form of a “20 week abortion ban” of their own. Yet, as nice as it is to celebrate a win – especially in light of the over 200 abortion restrictions passed in just the last three years – we also need to be aware that the Supreme Court’s decision isn’t that they wouldn’t strike down Roe over a 20 week ban. They just said that this isn’t the case that will prompt them to do it.
As I wrote in October, the Arizona ban, which made abortion illegal after 20 weeks gestation (18 weeks post conception) differed from earlier 20 week bans, which banned abortion at 20 weeks fertilization (22 weeks post conception). Although the time frame may not seem remarkably different, the justification behind the two opposing cut off points were.
Arizona’s bill, which was drafted by American’s United for Life as a “woman’s safety” bill, was written around the theory that abortion was much more dangerous after 20 weeks gestation, making later abortions much “riskier” than earlier abortions. To stop patients from undergoing these “risky” abortions, a ban was necessary to protect a patient’s health.
The argument was crafted to try to sway Supreme Court Justice Anthony Kennedy, whom many believe is the swing vote when it comes to any bill that could add new restrictions to the right to an abortion. If so, Kennedy didn’t bite. Instead, the court seemed to agree with an earlier appraisal by federal Judge Andrew J. Kleinfeld. Judge Kleinfeld ruled to block the ban, stating, “[P]eople are free to do many things risky to their health, such as surgery to improve their quality of life but unnecessary to preserve life.”
However, by refusing to hear the case the Supreme Court isn’t responding to all 20-week bans as a whole. Instead, they rejected the idea that abortion should be banned at 20 weeks gestation to stop pregnant people from undergoing “dangerous” procedures. Still unknown is whether the court would be more receptive to a pre-viability ban in a different package, such as the one National Right to Life Committee has tried so hard to offer them in the 20-week bans passed in Nebraska, Idaho, Georgia and a handful of other states.
The “Pain Capable Unborn Child Act,” the 22-week gestation version of the so-called 20-week bans, uses the medically unsupported claim that fetuses feel pain by at least 20 weeks post fertilization as their sole reason for banning the procedure. As Julie Schmit-Albin, executive director of Nebraska Right to Life, told the Lincoln Journal Star, the Arizona ruling does nothing to diminish their belief that a 22-week ban would be upheld by the courts.
“The Arizona law is not the model used in Nebraska,” she told the paper. “The Arizona law was a morphed version of what Nebraska passed with the emphasis in that law on protecting women’s health with fetal pain as an addendum. A truer test of a case of first impression on a fetal pain ban would have been the Idaho law, which … was based directly on the Nebraska model.”
Idaho’s fetal pain ban was blocked by the 9th Circuit, and Georgia’s same law was blocked by the state court. Neither case has worked its way to a point where the Supreme Court would be inclined to review it. Often, the Supreme Court will only take up a case if it can resolve a conflict between lower courts over the issue, such as opposing rulings in different circuits. So far, that hasn’t happened.
Most of the states with 22-week gestation bans haven’t had an opportunity to challenge the law even if they wanted to. Many of the states that have passed the ban are like North Dakota or Nebraska, where there are no providers that offer abortions that late in gestation (Nebraska’s Dr. Leroy Cahart stopped offering later abortions in the state and opened a clinic that did provide such later procedures in Maryland, instead). In states that do have doctors who could have the standing, such as Texas, the likelihood of getting a favorable ruling from a slate of judges who have never met an abortion restriction they didn’t find constitutional makes a legal challenge a daunting prospect.
As the bill that AUL’s Charmaine Yoest said, “may well be the case that leads the Supreme Court to examine and acknowledge the risks of abortion to women,” the Arizona challenge fell flat. That doesn’t mean that the court won’t take up a case to rule directly on the issue of alleged fetal pain itself. With a number of states still likely to pass such a bill and Republican Congress members still obsessed with a federal version of it, that may only be a matter of time.
When that challenge does make it up to the Supreme Court, here’s hoping we are just as lucky as we were today.
Robin Marty is a freelance writer, speaker and activist, and the author of Crow After Roe: How Women’s Health Is the New Separate But Equal and How to Change That. Her articles have appeared at Rolling Stone, Bitch Magazine, Ms. Magazine, In These Times, Truth Out, AlterNet, RH Reality Check and other publications.