Paul Isaacson v. Tom Horne
716 F.3d 1213
9th Cir.2013Background
- Arizona HB2036 prohibits abortions after twenty weeks gestation unless in a medical emergency, aligning with a separate post-viability ban.
- Section 7 (the twenty-week law) forbids non-emergency abortions when gestational age is at least twenty weeks, before viability.
- Physicians sued, seeking declaratory and injunctive relief, arguing Section 7 violates pre-viability abortion rights under the Fourteenth Amendment.
- District court consolidated a preliminary injunction hearing with merits, ruling Section 7 was a regulation, not a prohibition, and upheld it as not unduly burdening the right.
- Plaintiffs appealed, challenging standing and arguing the law effectively precludes pre-viability abortions after twenty weeks.
- The Ninth Circuit held that pre-viability abortions before viability cannot be banned; Section 7 is unconstitutional as applied to women seeking non-emergency pre-viability abortions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Section 7 ban pre-viability abortions before viability? | Wasden: Section 7 prohibits abortions after twenty weeks prior to viability. | Horne/Montgomery: Law regulates the procedure, not a total ban, due to medical emergency exception. | Section 7 is unconstitutional; it bans pre-viability abortions before viability. |
| Is the medical emergency exception sufficient to save the law? | Emergency exception cannot validate a pre-viability ban; it does not ensure a woman’s ultimate choice. | Emergency exception can support regulation aimed at health considerations. | No; exception cannot convert a prohibition into a permissible regulation; law remains invalid. |
| Is viability the correct constitutional line for abortion regulation in this context? | Viability is the critical point, and pre-viability protections cannot prohibit the choice entirely. | Arizona can regulate abortion before viability based on health concerns and fetal life. | Viability remains the constitutional fulcrum; prohibition before viability is invalid. |
| Do plaintiffs have standing to challenge Section 7 on behalf of patients? | Physicians have jus tertii standing to challenge abortion restrictions for their patients. | Standing insufficient or not properly framed; the district court addressed merits instead. | Physicians have standing to challenge Section 7 on behalf of their patients; court proceeds to merits. |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (1973) (recognizes woman's right to terminate before viability and limits state interference)
- Casey v. Planned Parenthood, 505 U.S. 833 (1992) (abandones trimester framework; viability line remains critical; undue burden standard elaborated)
- Gonzales v. Carhart, 550 U.S. 124 (2007) (upholds viability-based limits and discusses abortion regulatory standards)
- Stenberg v. Carhart, 530 U.S. 914 (2000) (discusses ban on certain late-term methods and the need for a health exception)
- Colautti v. Franklin, 439 U.S. 379 (1979) (viability is the factual determination for state interest; cannot fix a fixed gestational line)
- Guam Society of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th Cir. 1992) (viability framework applied to pre-viability restrictions)
- Wasden v. Idaho, 376 F.3d 908 (9th Cir. 2004) (recognizes pre-viability abortion rights and health considerations)
- McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012) (reaffirms viability-based analysis in abortion regulation challenges)