*1 and sonable, join the Seventh I would we should holding that Circuits
Eighth This would Silva-Trevino.28 defer to dis Judges unfettered Immigration give by statute limited They still are cretion. substantial, “reasonable, probative” “clear evidence,29 BIA still needs and the for removal.30 convincing” evidence M.D.; ISAACSON, William Paul A. Miller, M.D., Hugh Clewell, M.D.; Plaintiffs-Appellants,
v. Attorney Ari- HORNE, General Tom capacity; zona, his William official Attorney County Montgomery, Gerard County, his official Maricopa County Lawall, At- capacity; Barbara County, offi- torney her for Pima Board; Medical capacity; Arizona cial Wynn, Director of Lisa Executive Board, in her official Arizona Medical Defendants-Appellees. capacity, 12-16670.
No.
Appeals,
United States
Circuit.
Ninth
5, 2012.
Nov.
Argued
Submitted
May
Filed
1229a(c)(3)(A).
Holder,
(8th
29. 8U.S.C.
William G. Montgomery (argued), Coun- Tobin, ae Andrew M. Speaker of the Ari- ty Attorney for Maricopa County; Douglas Irish, Representatives, L. zona House of J. and Mangum, Kenneth Steve Louis F. III, Pierce, Deryck Lavelle, Comus R. President of the Arizona and Bruce Senate. White, P. Maricopa County Attorney’s Of- Staver, Mathew D. Staver and Anita L. fice, Phoenix, AZ, for Defendant-Appellee Liberty Counsel, Maitland, FL; Stephen Montgomery. William Crampton McAlister, M. Mary E. Lib- Paula (argued), J. Perrera Deputy Counsel, erty YA, Lynchburg, for Amicus County Attorney, County Pima Attorney’s Liberty Curiae Counsel. Office, Tucson, AZ, for Defendanb-Appel- lee Barbara LaWall. White,
Beth H. Parker and Gabriel N. LLP, Francisco, Arnold & CA; Porter San CA; Lisa Hill Fenning, Angeles, Los Kim- SCHROEDER, Before: berley Parker, Friedman, A. MARY M. Susan Carolyn Chachkin, KLEINFELD, Jacobs Wilmer ANDREW J. Cutler LLP, Pickering Hale and Washing- BERZON, Dorr MARSHA S. Judges. Circuit challenged Arizona statute’s The OPINION not transform emergency exception does BERZON, Judge: Circuit into prohibition from a on abortion the law the Constitution is whether question Our Allow- regulation procedure. of abortion prohibit to legislature Arizona permits if abortion is ing physician decide twenty gesta- beginning abortion necessary the same as medically hold tion, fetus is viable. We allowing a to decide whether woman it does not. to term. More- carry pregnancy her own (“H.B.2036” or Bill Arizona House over, limitations as to regulations involve forbids, Act”), in April enacted “the abortion, not mode and manner of except emergency, in a medical terminate a of the choice to preclusion gestational of a determined be a fetus twenty- altogether. Arizona’s Arizona law at least weeks. age of to fetal preclusion prior is a week law fetal abortions after prohibits separately binding thus invalid under and is necessary preserve viability unless precedent. Supreme Court Ariz. life or health. See woman’s pregnant 36-2301.01(A)(l). chal- Rev.Stat. denying de- court erred The district *5 H.B.2036 in 7 of provision Section lenged entering claratory injunctive relief and and law”)1 (“Section twenty-week “the 7” or in favor of the State. We there- judgment preg- in ban earlier the abortion extends reverse. fore twenty weeks nancy, period between to Because Sec- viability. fetal gestation and Background it to whom deprives women tion I. to termi- ultimate applies of the decision fetal viabili- prior to pregnancies their nate 2012, 12, Jan April Arizona Governor On long a line under ty, it is unconstitutional law, amend- signed into Brewer H.B.2036 precedents. invariant 1 of the chapter article ing title Wade, Statutes, governs Since Roe which Revised Arizona (1973), the Su- L.Ed.2d 147 availability performance and of abor- concerning the con- case law preme Court go to into Act was the state. The tions with women protection accorded stitutional 2, 2012, granted but we August on effect undergo to to the decision whether respect injunction August on emergency an unalterably clear re- been an has abortion the chal- staying enforcement has although it point, basic garding one appeal. pending this lenged provision a a woman has respects: in other varied 7, co- of Section challenged portion The to terminate right to choose constitutional § 36- at Arizona Revised Statutes dified viable. fetus is her before the 2159, reads: of that on the exercise prohibition A emergency, a in a Except A. the state While per se unconstitutional. at- induce or perform, not person shall mode and manner regulate the may an abortion or induce tempt perform to viability, may it to fetal prior abortion referring or the physician unless the abortion, electing a woman proscribe first a determination has made physician on her impose burden nor undue age of the gestational probable through regulation. choice 36-2159, to Sec- § all references encompasses provi- codified at 7 of H.B.2036 1. Section only the chal- opinion denote Stat- 7 in this be codified at Arizona tion to sions Revised § As this § 36-2159. lenged portion 36-2158 thereof. utes provision challenges only to be lawsuit making unborn child. In that determi- abortion at gestational age.” H.B. nation, 9(B)(1).2 physician referring physi- 2036, sec. The Act lists num- cian shall make inquiries of the legislative ber of findings support of the pregnant perform woman and or cause assertions in the purpose provision, with performed to be all medical examina- citations to medical research articles. See tions, imaging studies and tests as a H.B.2036, 9(A)(l)-(7). sec. reasonably prudent physician in the II. community, knowledgeable about medical facts and conditions of both the plaintiffs in this action are three involved, woman and the unborn child board-certified obstetrician-gynecologists would necessary perform consider (“the who practice Arizona Physicians”). in making consider an accurate di- July In they filed suit in the United agnosis with respect gestational age. States District Court for the District of Arizona, B. Except a medical emergency, seeking declaratory injunc- person knowingly shall not tive perform, against in- relief enforcement of Section 7 attempt perform duce or or induce an on behalf of themselves and of their pa- pregnant on a woman if wishing tients to terminate pre-viability3 probable gestational age of her pregnancies unborn at or after twenty weeks.4 child has been determined be at least Their complaint named three state defen- twenty weeks. dants county and two defendants: the At- torney Arizona, General Horne; Tom Ariz.Rev.Stat. 36-2159. Arizona law de- Board; the Arizona Medical and the Exec- fines emergency” “medical as: utive Director of the Arizona Medical that, a condition on the basis of the *6 Board, Wynn Lisa (collectively “State De- physician’s good faith clinical judgment, fendants”); County the Attorney for Pima complicates so the medical condition of a County, LaWall; Barbara County and the pregnant woman as to necessitate the Attorney Maricopa County, for William immediate abortion of her pregnancy to Montgomery. avert her death or for delay which a will create serious risk of substantial and In respective their practices, each of the irreversible impairment major of a bodi- Physicians performs abortions before fetal ly function. viability and at twenty and after weeks 36-2151(6). gestational § age. Ariz.Rev.Stat. They The assert stated their purpose of patients the Act is to seek “[pjrohibit abor- abortions “for a twenty reasons, tions at or after variety weeks gestation, including that continua- except in cases of a emergency, tion of the pregnancy poses a threat based health, on the documented risks to their women’s that the fetus has diag- been health and strong medical evidence nosed with a medical condition or anomaly, that unborn children feel pain during an or that they losing are age,” 833, 870, "Gestational as used Arizona 505 U.S. 112 S.Ct. legislature throughout opinion, and this (1992) Roe, refers (citing L.Ed.2d 674 age to the of a fetus calculated from the first 705). day pregnant of the woman’s last menstrual period. 36-2151(4). See Ariz.Rev.Stat. parties 4.The agree to this suit that no fetus is twenty gestational viable at age weeks and throughout opinion, As used "viability” this healthy that a typically viability fetus attains refers to "the time at which there is a realistic weeks, twenty-three twenty-four at the possibility maintaining nourishing and a earliest. life outside the womb.” Planned Parenthood twenty- Arizona’s court (‘miscarrying’).” properly Under held the suit is consid- law, complaint alleges, week these ered a facial challenge. The court recog- women will be unable terminate their nized that the application of Section 7 chal- before fetal unless pregnancies lenged by Physicians is the only law’s they emergency falling have a medical effective application: prohibit pre-viabil- exception. the Act’s There- within narrow ity abortions from twenty gesta- weeks fore, assert, Physicians the law violates tion.6 patients’ their Fourteenth Amendment Second, the court held that Section 7 process rights. substantive due regulates, prohibits, rather than Physicians for a preliminary moved at and after twenty gestational age, weeks injunction, which the State Defendants and principally because it contains a medical Montgomery opposed. Defendant Defen- emergency exception permitting some Montgomery dant also filed a motion to abortions after gestation. weeks dismiss the action. After Defendant La- The law “is not a ban on previability abor- expressed support for the prelimi- Wall tions,” stated, the court “but is rather a nary injunction, Montgomery Defendant limit on previability some abortions be- sought her a party dismissal as defendant.5 tween 20 gestational age and viabili- 25, 2012, July On the district court held ty.” hearing Physicians’ on the motion for a that, Finally, the court determined con- injunction preliminary and the motions to regulation sidered as a pro- rather than a Following hearing, dismiss. and with- hibition, challenged provision of H.B. any prior parties, out notice to the women, “prompt a few who are sponte retroactively court sua consoli- considering abortion an option, as to make preliminary injunction hearing dated the the ultimate they decision earlier than with a trial on the merits and issued final it,” might otherwise have made but the law denying decision all relief. The order de- impose does not a substantial obstacle to Physicians’ requests nied the pre- both abortions, because it does not women strip liminary permanent injunctions ability to choose to terminate their declaratory judgment. for a The court *7 pregnancies twenty weeks. This simultaneously denied Defendants’ motion right “time limitation” on the to obtain a to dismiss action and denied as moot abortion, the district court the motion to dismiss Defendant LaWall. concluded, justified by legitimate state The district prem- court’s decision was interests in fetal life and the health of First, ised on three central conclusions: pregnant women. although Physicians characterized above, For the reasons summarized their an as-applied challenge suit as be- Physi- cause limited to district court concluded that post-twenty-week those viability, abortions that occur before challenge cians’ facial to Section 7 fails. 36-2301.01(A)-(B) ("A opposed physician 5. Because Defendant LaWall neither shall not Physicians’ preliminary motion in- knowingly perform an abortion of viable junction argued nor in favor of Section 7 physician ... fetus unless states in writ- [t]he court, opinion before this references in this ing performed before the abortion is that the arguments only Defendants' refer to the State necessary preserve abortion the life or Montgomery. Defendants to Defendant and/or woman, specifying health of the the medical probable indications for and the health conse- supra, prior adoption 6. As noted to the quences of the abortion.... This section does H.B.2036, already prohibited Arizona law apply emergency.”). not if there is a medical post-viability abortions. See Ariz.Rev.Stat. (internal (1981)) omitted); view, as-applied quotation marks In court’s the district 65(a)(2). pregnant woman such challenge by an affected see also Fed.R.Civ.P. No here, vehicle for determin- proper would be the occurred nor is there indi- notice unconstitutionally de- ing whether the law parties requested cation that or fa- “the to make the prives fact, a woman of consolidation. In Defendant vored previability.” abortion choice Montgomery specifically registered ad- objection hearing being vance his to “the timely appealed. Physicians in- hearing permanent
turned into a
on a
Discussion
65,”
junction
citing
pres-
under Rule
time
assembly
prevent
sures that would
of nec-
I.
essary
support
arguments.
data in
of his
begin by addressing
preliminary
two
We
factual record or the district
Were the
issues.
findings
pertinence
court’s factual
to our
First,
presumed the
the district court
decision,
pro-
we would be troubled
parties “agree that
the facts at issue
party
cedure followed. But neither
has
materially
dispute,
this case are not
challenged
approach.
the district court’s
agree that the Court needs no additional
ultimately agree
And because we
with the
legal argument
evidence or
to reach its
fully
Physicians
this ease is
controlled
basis,
in-
decision.” On that
the court
by binding precedent, the truncated nature
voked Federal Rule of Civil Procedure
of the record does not matter to our deci-
65(a)(2)
preliminary
and consolidated the
sion.
therefore do not consider this
We
injunction hearing with a trial on the mer-
procedural matter further. For the same
opinion.
its when it issued its
reason, we do not address whether the
“A district court
consolidate a
“findings”
supported by
district court’s
are
preliminary injunction hearing with a trial
degree
the record or discuss the
of defer-
merits,”
only
provides
on the
but
when it
legislative findings
ence owed to the
recit-
parties
unambiguous
with “clear and
ed in the Act.7
ei
[of
consolidation]
notice
the intended
Second, the
court
district
did
hearing
ther before the
commences or at a
Physicians’ standing
bring a
address the
parties
time which will afford the
a full
challenge on their own behalf and that of
opportunity
present
respective
their
patients.
recognize
their
“We nonetheless
cases.” Air Line Pilots Ass’n Int’l v.
Airlines,
independent obligation
our
to examine our
Inc.,
Alaska
898 F.2d
(9th
(alteration
Cir.1990)
jurisdiction,” Indep. Living
own
Ctr.
S.
original) (quot
Camenisch,
Shewry,
ing
Cal. v.
543 F.3d
Univ.
Tex.
Cir.2008) (internal
390, 395,
quotation
1222
sufficiently compelling to
is nant woman is
846,
right
2791.8 This
112 S.Ct.
U.S. at
right
proce-
of “the abortion
permit regulation
a woman’s
within
encompassed
Roe, 410
at 153-
reasonably
U.S.
related to
privacy,
ways
see
in
that are
personal
dure
Wasden,
705;
also
376
54,
see
93 S.Ct.
The state’s interest
maternal health.” Id.
wom
(recognizing
“[a]dult
at
life,”
F.3d
921
human
howev-
potentiality
in “the
of
right
Amendment
a Fourteenth
en have
er,
compelling
point
at the
of
only becomes
and
pregnancy”),
terminate a
thereafter,
held, the state
viability;
Roe
liberty
of
component
of
and a
“is a rule
chooses,
pro-
“may,
regulate
if it
even
renounce,”
at
Casey, 505 U.S.
we cannot
scribe,
except where
is neces-
opinion). At
871,
(plurality
112
2791
S.Ct.
judgment,
in
for
sary,
appropriate
bottom,
by Roe and
right recognized
the
the
of the life or health of
preservation
the
right
by Casey is “the woman’s
reaffirmed
164-65,
at
1223
Supreme
controlling
precedent.
age
Court
tational
the
point,”
“critical
—remains
in-
certainly
529,
That characterization is most
id. at
(O’Connor, J.,
[bjefore viability line of the importance the making the ulti- sized from any woman hibit constitutionality of the evaluating her when pregnan- terminate to mate decision the example, For laws. upon this state abortion impose not may cy.’ It also a ban on abor- burden, if a Tenth Circuit struck down which exists an undue right twenty gestation be- place is to tions after or effect ‘purpose regulation’s cause, viability by irrebuttably presuming a path in the of obstacle a substantial weeks, the prohibited the the at before seeking an abortion woman may not be viable. fetuses that abortion of viability.’ fetus attains 1112, 102 F.3d Bangerter, L. v. See Jane 156, Gonzales, at 550 U.S. (10th Cir.1996). The Sixth Circuit 1115-18 omitted) (citation added) (emphasis 1610 law unconsti- a state abortion determined 878-79, 112 at Casey, 505 U.S. (quoting several of prohibited because it tutional From opinion)). (plurality 2791 S.Ct. pre-viability abortion the most common went on to con- premises, those Gonzales methods, effectively precluding women constitutionality of the Partial- sider the pregnancies their before terminating Act of 18 U.S.C. Birth Abortion Ban Family Northland viability. fetal See it as framing question the before Cox, Clinic, 487 F.3d Planning Inc. v. Act, by its text in measured “whether the (6th Cir.2007). 337 attack, imposes a facial substantial this late-term, previability, but to obstacle make many progeny its As Roe and 156, 127 1610. Id. at S.Ct. clear, point, abortions.” a fixed viability, although not Supreme Court point. the critical court, similarly, has reaffirmed This among that varies recognized has in viability line cases. the abortion applied improvements that pregnancies and Gyne Obstetricians & Society In Guam push later in technology will both Ada, F.2d 1366 Cir. cologists v. 962 at which abortion is point 1992), acknowledged that the core we advance earlier safer than childbirth and Roe, state including holding its viability. of fetal gestation point abortion fetal proscribe at 112 Casey, 505 U.S. S.Ct. See at id. viability, survived Webster. See Indeed, O’Connor such trends led Justice challenged statute Because 1372-74. remark, that “the Roe prior at criminalized abortions issue Guam ... is on a course with collision framework viability, we held unconstitu prior, to Akron, at S.Ct. itself.” tional. Id. Both Wasden McCormack (O’Connor, J., But dissenting). while (9th Cir.2012), Hiedeman, F.3d 1004 of Roe’s factual “time overtaken some has a starting points woman’s took as their the abandonment prompting assumptions,” termi “Fourteenth Amendment framework, changes of “no Wasden, of the trimester pre-viability pregnancy.” nate viability more or less fact rendered McCormack, have 921; at accord 376 F.3d the bal- point at which appropriate as (enjoining at enforcement F.3d Casey, 505 U.S. tips.” ance of interests imposed a statute substantial fetus).11 Evolving medical 860-61, 112 a nonviable obstacle 1009; McCormack, statute, Idaho enjoined See F.3d 11. In addition to challenged plaintiff §§ also anoth- We did not reach Code 18-505-18-507. McCormack law, however, Pain-Capable ban, Child er Idaho Unborn constitutionality be- PUCPA”). ("the the Ari- Act Like Protection standing plaintiff to chal- cause the lacked here, the bans at issue PUCPA zona statute McCormack, at 1024-25. lenge 694 F.3d it. gestational age. twenty weeks abortions from *12 have not eroded central parties realities Roe’s agree here that no legal holding—that “viability marks the fetus is at twenty viable gestational weeks earliest at which the point State’s interest age. The district court recognized, so de constitutionally adequate in fetal life is it claring undisputed viability usually justify legislative nontherapeutic a ban on twenty-three occurs between and twenty- 860, abortions.” Id. at 112 S.Ct. gestation. four weeks Accordingly, Ari Casey could not have been clearer when it zona’s ban on abortion from twenty weeks stated: necessarily prohibits pre-viability abor
The soundness or unsoundness of that therefore, tions. Section 7 is without in judgment constitutional no sense more, invalid. viability
turns on whether
at ap-
occurs
weeks,
proximately 28
as was usual at
III.
Roe,
weeks,
the time of
at 23 to 24
itas
today,
sometimes does
or at
mo-
some
A.
slightly
pregnancy,
ment even
earlier in
justified
The district court
its con
it
ifmay
respiratory capacity
as
fetal
trary
conclusion
characterizing the
can somehow be enhanced in the future.
challenged Arizona law as a regulation,
occur,
may
Whenever it
the attainment
rather than
prohibition,
a
pre-viability
of
viability may continue to serve as the
of
abortions. The court then reasoned that
fact, just
critical
as it has done since
the statute does not impose an “undue
Roe was decided.
burden,” under the standard
enunciated
added).
(emphasis
Id.
Casey for determining
validity
of rules
viability is a “flexible”
While
regarding the
pre-viabili
manner in which
point,
Danforth,
see
428
at
U.S.
96 ty abortions are
provided.
to be
Casey
determinable,
medically
S.Ct.
it is
id.
specified that a
imposes
law
an undue bur
64-65,
at
Precisely
forth, 428
at
U.S.
96 S.Ct.
That
“power of the State
into the
reachfes]
why
fix viability
state
at a
liberty protected
heart of the
by the Due
specific
point
pregnancy. See Colautti
Process
Clause.”
388-89,
675;
at
U.S.
Dan
(plurality opinion).
S.Ct. 2791
But this
64-65,
forth,
Court’s
a
validity
to the
cause a woman can obtain
tion makes all the difference
weeks, the chai-
prior
twenty
of the Arizona statute.
lenged
deprive
prohibit any
law does not
her of the
not
making
woman from
preg-
“ultimate decision” to terminate her
ultimate decision to terminate
preg-
her
a
nancy,
merely places
but
“time limita- nancy
viability.”
availability
tion” on
choice.
(plurality opinion)
S.Ct. 2791
(empha-
not,
in pregnancy
abortions earlier
does
added).
instructs,
sis
As Casey
even with
however,
alter
nature
the burden
a
emergency exception,
pro-
imposes
Section
on woman once
scription on a
undergo
woman’s choice to
twenty
her
is at or after
an abortion
By
remains invalid.
per-
Id.
prior
viability.
prohibition
but
And a
on mitting
twenty
abortions from
weeks to vi-
abortion at and after
weeks does
ability only at the decision of a medical
merely “encourage”
women to make a
professional as to an immediate medical
regarding
decision
abortion earlier than
necessity,
prohibits
Section 7
women from
*14
Supreme
require;
Court cases
it forces
electing to terminate
pregnancies
their
them to do so.
prior
to fetal viability. See id. at
112
law,
twenty-week
Under
(joint opinion).
S.Ct. 2791
woman
to
preg
who seeks
terminate her
Moreover,
constitutional,
to be
even laws
nancy must do so
twenty
before
weeks
that proscribe post-viability abortions,
gestational age or
such
right
forfeit her
to
carry
choose whether to
her pregnancy
36-2301.01,
§
to
as Arizona Revised Statutes
term. The
expressly
Court has
Roe,
must contain a
exception.
health
See
rejected
attempts
such
to “stretch the
164-65,
705;
U.S. at
Stenberg,
S.Ct.
viability”
point
pregnancy,
earlier in
or
pregnancy; 894, 112 irrelevant.” U.S. broad, save it.12 could how emergency excep- the medical Because pre- all women who seek tion will not cover at or after
viability abortions
litany
justifications given by
To the
continues
weeks,
challenged provision
failing
the district court for
to follow
complete
rights
bar to the
operate as a
clear rule that no wom-
Supreme Court’s
choose to terminate
of some women
entirely precluded
from choos-
be
the fetus is via-
pregnancies
their
ing
pregnancy
to terminate her
emergency excep-
Significantly,
ble.
prior- viability,
Defendants add one
time
abortions
cases
tion does not authorize
that,
They
twenty-week
argue
more:
failure,
anomaly
of fetal
“might
solely
be constitutional based
threat to
which do not
an immediate
pose
on
interest
in ma-
compelling
the state’s
health. See Ariz.Rev.Stat.
the woman’s
health.”
medical knowl-
ternal
Current
36-2151(6).
contend,
edge, Defendants
indicates
higher
“abortion
20 weeks has
rates of
sum,
exception
a health
In
while
mortality
complications
health
for the
an otherwise constitu
necessary to save
carrying
mother than
the unborn child to
*15
post-viability
tional
ban
reason,
they
the
Consequently,
term.”
it
save an unconstitution
challenge,
cannot
may proscribe
state
abortions from twen-
of a woman’s
al
on the exercise
prohibition
ty
weeks because “there is no
her
right to choose to terminate
added).
(emphasis
abortion”
unsafe
viability.
more,
suggestion
square-
this
runs
Once
ly up against
progeny,
Roe and its
includ-
3.
ing Casey. Recognizing
important
an
the
court’s ob
Nor does
district
health,
state interest maternal
Roe held
pre-viability
that
abortions at
servation
may regulate
that “a State
the abortion
twenty
relatively
weeks are
and after
rare
regulation
that the
procedure to the extent
to the law’s constitu
have
relevance
reasonably
preservation
to the
relates
validity.
prohibition’s
A
constitu
tional
protection of maternal health.” 410 U.S.
tionality
by
impact
its
on
is measured
added).
(emphasis
at
wish to undertake known risks.14 Under
asserted interests
override
woman’s
law, however,
challenged
Arizona
if a
right to choose
carry
whether to
a preg-
pregnant
twenty
woman is
or after
nancy to term. Supreme
precedent
gestation,
longer
weeks
she no
can decide
does not countenance such a shift.
willing
whether she is
to undertake the
abortion;
risks to her
posed by
own health
IV.
the State has made that choice for her.
Finally,
turn
question
we
to a
to which
correctly point
Defendants
out that the
the district court devoted considerable at-
existence of medical or scientific uncertain-
tention
which
ultimately
but
we conclude
ty regarding
safety
either the
of abortion
has no bearing on the
legal
outcome of the
after
gestational age
or fetal
issue before us: whether
Physicians’
capacity
pain
to feel
does not preclude the
properly
suit is
construed as a facial or as-
legislature
Arizona
setting
*16
from
standards
applied challenge to the Arizona statute.
for the manner and
through
means
which
Physicians
The
provided.
they
abortions are to be
maintain that
See Gon-
zales,
163-64,
challenge the twenty-week
only
127
law
S.Ct. 1610.
as it
uncertainty
applies
Such
“does not
to
foreclose the
abortions at or af
legislative power
twenty
exercise of
in
ter
gestation;
they
the abor-
weeks
do not
any
tion context
more than it
in
allege
does
other
Section 7 is
ap
unconstitutional as
164,
contexts.” Id. at
127
1610. But
plied
S.Ct.
to later-term abortions of viable fe-
fetus,
supports neither
binding legal
Defendants' assertions re-
our
as
decision rests on
garding the
principles.
relative risks of abortion nor De-
concerning
capacity
fendants' claims
fetal
to
experience pain
gestation.
Notably,
the Arizona
Court has
See,
that,
e.g.,
emphasized
ACOG Amicus Brief at 14-15 & nn.
in the context of informed
consent,
(arguing
13-14
undergo
opera
abortion is safer than
"the
decision
legislature’s
belongs
childbirth and that the
patient.”
Arizona
tion
to the
Hales v. Pitt
man,
305, 314,
findings
(1978).
address medical risks associated with
118 Ariz.
ters as to the except in Amendment and abortion First cases, if a violation is found. ate constitutional as there is “no set of circumstances” legal used in applies Id. The substantive tests to which the statute under which it as-applied challenges facial and are “invar would be valid. Id. at S.Ct. iant,” And, Hoye, given at our the one corre- percent 653 F.3d so hundred lation, question special remains whether the statute de there is no rule doubt prives applies challenges a woman of the to choose to that to facial in abortion yet applied regulation). plaintiffs 15. That the statute has not been Nor do the plaintiffs preclude obligation, of the does not them have an as the court im- district bringing pre-enforcement, as-applied from plied, argue that the statute would be con- challenge. Many challenges such have been facts, stitutional under some set of but was See, e.g., Casey, past. entertained in “only as-applied unconstitutional to Plain- 2791; Wasden, U.S. at they can it is unconstitu- tiffs.” If show that 914; F.3d at Planned Parenthood S. Ariz. patients they tional as to the on whose behalf Lawall, 180 F.3d 1024-27 Cir. sue, plaintiffs their burden for then have met 1999) Casey's (applying "undue burden stan as-applied challenge. evaluating challenge dard” in a facial to an plaintiffs only lenged provision cases—that need show the of Section 7 in its entire- invalid “in a challenged large ty. frac tion in which of the cases [the statute] Conclusion relevant,” 895, 112 at Lawall, 2791—is also met. See also controlling Supreme Under prece- Court F.3d at 1027. dent, may Arizona deprive not a woman of the choice to terminate her contrast, In the facial versus as- any point prior viability. Section 7 ef- applied distinction is relevant when a deprivation, by fects such a prohibiting statutory applies claimed defect to a sub abortion from twenty gestational weeks law, category people affected age through fetal viability. twenty- The and the court must determine whether week law is therefore unconstitutional un- particular sub-category may challenge der an unbroken stream Supreme whole, including appli statute as a its authority, beginning with Roe ending people cation to who are not similarly situ with Gonzales. simply Arizona cannot Here, ated. because of the one hundred proscribe a choosing woman from to obtain correlation, percent that usual concern an abortion before the fetus is viable. with invalidating an abortion statute on its We injunctive goes face—that relief therefore REVERSE the be district yond the court’s denial of declaratory injunctive circumstances which the stat ute is invalid to include situations in relief. which may not be—does not arise. KLEINFELD, Senior Circuit Judge, Gonzales, In for example, the Court con- concurring: impact sidered whether the of the Partial- The current state of compels the law me
Birth people Abortion Ban Act on for to concur. whom the banned abortion method be
medically necessary
grounds
was
to hold
Arizona defends the statute on two
only
that the ban was unconstitutional
grounds:
that the risk to pregnant women
individuals,
applied
as
to those
but that it
is considerably greater after 20
ges-
entirely
was
unconstitutional and could not
tation, and that
pain
fetuses feel
at least
applied
be
at all because it
lacked medi- by 20
The
presented
weeks.
State has
Gonzales,
cal exception. See
U.S.
substantial
support
medical evidence to
its
161-63,
The Physicians are therefore to them when the death penalty entitled is carried seek, they enjoining relief the ehal- out.1 similarly sug- Gonzales v. Carhart See, Brewer, (9th Cir.2011) ("Arizona e.g., 1. Dickens v. F.3d a three- uses subjected significant to inhumane ... if it women particularly if a that
gested
health risks.”5
removing the child
procedure,
it
killing
intact and then
the uterus
from
challenge
limit their
plaintiffs
But
do not
the uterus and entered
after it had left
cases, they just use them as emo-
to such
canal,
“truly necessary in
were
vaginal
why
tionally appealing anecdotes for
abor-
circumstances,
likely
appears
may be desirable after 20 weeks.
some
tions
facial,
is
not an as-
challenge
Because their
the fetus is an alterna-
injection that kills
challenge involving specific birth
applied
tive.”
defects,
only
our decision cannot be based
extremely
argue that some
plaintiffs
The
un-
involving
on cases
severe birth defects
cannot be detected
birth defects
serious
period.
until the 20 to 23 week
detectable
If that were all that
after 20 weeks.
until
ought
reject
to
argues
The State
that we
statute,
about
we
problematic
were
challenge
as-ap-
facial
and await an
this
doctrine of constitutional
apply
could
correctly ar-
plied challenge. The State
avoidance,
statutory phrasing
and read the
in a facial chal-
gues
challengers,
that the
week
for seri-
permit post-20
abortions
can
“no
lenge, must show that there
be
set
elementary
“The
rule
ous fetal anomalies.
of circumstances ... under which the Act
every
reasonable construction must
why plaintiffs
This is
are
would be valid.”6
to, in order to save a statute
resorted
be
facial chal-
prevail
not entitled
this
unconstitutionality.”3
statutory
cases,
by showing
case
that in
lenge
some
ir-
“serious risk of substantial and
phrase
gross
deformity
as the
fetal
not de-
such
major bodily
of a
impairment
reversible
weeks,
until
tectable
after 20
the statute
could,
strain,
function”4
albeit with some
poses an “undue burden.”
impairment of the fetus’s
be read to mean
challenge,
Because this is a facial
we
not,
bodily functions. Even if
birth of a
opposite question,
have
consider the
likely
severely
highly
deformed child is
there can
case in which
whether
be
bodily
a mother’s
mental
impair all of
so,
the burden is not “undue.” To do
we
life,
rest of her
because of
functions for the
hypothesize
must
cases which the statu-
extraordinary burdens the
dis-
child’s
tory
might
“burden” on abortion
be less
likely
and illnesses will
cause a
abilities
obviously troubling.
suppose
So let us
loving mother to suffer. A hellish life of
that the statute
on fetuses
allows abortions
pain may
likely
be
for both mother and
normal,
are,
perfectly
that are
as most
child, in the case of the birth defects de-
that the reason for the mother’s decision to
A
plaintiffs’
prohibi-
scribed in
affidavits.
partner,
a late abortion is that her
obtain
noticing
previously
her
upon
tion on abortion “would be unconstitutional
undisclosed
Gonzales,
injection
drug
cocktail that
5.
pregnancy, pressures so. The more effective at preserving the lives of in facial question we must answer this premature babies.9 The good briefs make may pro- a challenge case is whether state arguments why viability should not a post-20 hibit week but abor- have the significance does, constitutional it tion where the mother’s choice results not controlling but under Supreme Court deci- defect, likely from of a birth detection sions, it does significance. indeed have that from to the the moth- health risks fetus or though And even medical science for pre- er, in but from her decision made may mature babies advance they to where ordinary pressures context of the of life. earlier, are viable three or four weeks probably Such cases occur in substantial Arizona does hot claim that science has numbers, ambivalence, because moral done so. strain, strain, economic relationship and Thus this case has to be decided on the accompany pregnan- strain sometimes assumption that the statute applies to non- cy- fetuses, viable and that the statute before par- What controls this ease is that the prohibits us abortions of non-viable fetuses dispute ties do not that the 20-week line past gestation 20 weeks of except for medi-
Arizona has drawn is three or four weeks
cal emergencies. We evaluate whether
prior
viability.
Defendants do not ar-
prohibition is,
Casey,
under
an “undue
gue that the 20 to 23 or 24 week fetuses
burden.” The woman who does not have a
viable,
protected by the statute are
and
“medical emergency” cannot obtain an
offer no evidence to that effect. We are
abortion after 20 weeks from an Arizona
bound,
case,
in
particular
by
this
the ab-
physician.
question
for us is whether
dispute
sence of
factual
as to whether
the current state of constitutional
pro-
gestational
fetuses
be killed between
hibits the states
imposing
that re-
ages 20
or
weeks are viable.
striction.
It does.
cannot,
course,
The decision in this ease
Though Casey
a plurality opinion
was
factual
question
establish the
leaving
interpretation,10
some room for
viable,
they
whether
are
because non-via-
majority
Supreme
Court in
bility
Gon-
underlying
assumption
is the
factual
spoke clearly,
partially
zales
albeit
dic-
parties
today’s
both
case. For this
ta,11
case,
as to the current state of the law.
non-viability.
Arizona concedes
propositions
Here are several
of law
Viability is the “critical fact” that con
which,
Gonzales,
Casey
under
we are
constitutionality.7
trols
That
odd
bound:
rule,
viability changes
because
as medicine
government
1.
legiti-
“[T]he
has a
changes. As Planned Parenthood v. Ca
mate and
in preserv-
substantial interest
noted,
sey
between Roe v.
Wade8
life”;12
ing
promoting
fetal
1992,
Casey
and the time
was
decided
viability dropped
viability,
from 28 weeks to
2. “Before
the State’s inter-
weeks,
because medical
strong enough
science became
ests are not
support
833,
Casey,
7. Planned.
Supreme
Parenthood v.
505 U.S.
considered dicta from the
860,
(1992).
Rather,
112 S.Ct.
-
making
prohibit any woman
it,
to another state for
might
go
be able to
preg-
to terminate her
ultimate decision
I
in which one
but
am unaware
case
nancy”;
may deprive someone of a constitu-
state
burden,”
prohibited
6. An “undue
the individual could
tional
because
than an absolute
Casey
though
even
less
aborting
And
exercise it
another state.
“regulation’s pur-
if a
prohibition, exists
is,
the current
previability fetuses
under
a
pose
place
or effect is to
substantial
law,
right.
state of the
a constitutional
path
seeking
in the
of a woman
obstacle
True,
interest in
legitimate
the state has
attains via-
an abortion before
fetus
Although
protecting
pain.
the fetus from
bility”;
plaintiffs’
previability
amici claim that a
accepts
appropriate
7.
as
Gonzales
pain,
experts’
the state’s
fetus feels no
objectives
inhu-
government
prohibiting
does,
legisla-
claim that
affidavits
society,”
procedures
mane
“coarsen
pass legisla-
tures have “wide discretion to
government may
that a
con-
recognizing
tion in areas where there is medical and
communi-
sider “effects on the medical
uncertainty.”22
protection
But
scientific
ty,”
“may
regu-
use its voice and its
pain,
pain
of the fetus from
even the
latory authority
profound
to show its
in the back
having a doctor stick scissors
woman”;18
respect for the life within the
having
of its head and then
doctor
“open[] up
The “undue burden” test does not
the scissors
stick
[and
in]
8.
purpose
high-powered
open-
that have a valid
suction tube into the
prohibit laws
baby’s
out”
making
ing,
an “incidental effect of
brains
was
suck[ ]
but
justify
a com-
expensive
enough
more difficult or
Gonzales to
[abortion]
seeking
plete prohibition.23
and the woman
procure,”
omitted).
(quotations
(quotations
13. Id.
Id. at
respect analogous. it is Association, Hospital California moral, very philosophical, prac- substantial Plaintiff-Appellee, tical, religious objections to one or limited, analogy both. Of course v. to death have because convicts sentenced Toby Douglas, Depart Director of the crimes, fetuses committed horrendous but ment of Health Care of the Services But analo- have committed no crimes. California, Defendant-Appel State of regardless gy applies to the extent lant, have, objections may court we lower authori- apply is bound to requires
ty, which allows executions and Sebelius, Secretary Kathleen permit states to abortions. And under the Department of Health United States we, authority by legis- which and the state Services, and Human Defendant. latures, bound, prohibition are the Arizona is unconstitutional. Transportation Medical Asso California
ciation, Inc., corporation; a California Inc., Transportation, a Califor GMD Lonny Slocum, corporation; nia
individual, Plaintiffs-Appellees, CARE, a
MANAGED PHARMACY Cali Toby Douglas, Depart Director of the Independent corporation; Liv fornia ment of Health Care Services California, ing Center of Southern California, Defendant-Appel State Inc., corporation; a California Cali lant, Independent fornia Foundation Centers, corpora Living a California D,
tion; Shapiro, Pharm dba Gerald Sebelius, Secretary Kathleen Pharmacy Upton Shoppe; and Gift Department of Health States United Steen, Pharmacy; Sharon dba Central Services, Defendant. and Human Pharmacy, Inc., Tran a California cor Association; Pharmacy; poration, Medical Califor dba Tran Odette California Association; Kovacs-Frey Pharmacy; Leonelli, nia Dental California dba Association; Pharmacy, Inc., National Market Pharmacists Market dba Drug Stores; Beckwith, Pharmacy; Chain Mark Plain Association of Medical tiffs-Appellees, Association Of California