Arizona recently passed a law outlawing abortion after the 20th week—except in a maternal “medical emergency,” based on the potential that the fetus can feel pain at that age of gestation. My friends at the Bioethics Defense Fund have announced that, with their assistance and participation, the law has been upheld. First, the court ruled that Roe v. Wade was not violated: From the ruling in Isaacson v. Horne:
...the Court finds that H.B. 2036 does not impose a substantial obstacle to previability abortions. As referenced above, the effect of H.B. 2036 limits abortions between 20 weeks and the time of viability...Plaintiff Dr. Clewell avows that 90% of abortions take place during the first trimester of pregnancy, through approximately the thirteenth week.
In other words, only a relative few pre-viable abortions could be interfered with, that is those between 20-23 weeks (the latter being the general time of viability), since the great majority of abortions occur during the first trimester.
This was a facial challenge, meaning that the plaintiffs claimed that there are no circumstances in which the law could be applied constitutionally. By rejecting that argument, the Court ruled that in particular cases, the law might be applied unconstitutionally. But such challenges will have to wait until and if such cases arise and be determined by the facts of the case therein presented.
Next, the Court ruled that Arizona has a legitimate interest—and this is big, I think—in protecting the fetuses from abortion to prevent their experiencing pain:
In choosing to put a limit on abortions past 20 weeks gestational age, the Arizona Legislature cited to the substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least twenty weeks gestational age. Defendants presented uncontradicted and credible evidence to the Court that supports this determination. Namely, the Court finds that, by 7 weeks gestational age, pain sensors develop in the face of the unborn child and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors.
That the unborn child can feel pain is further supported by the fact that when provoked by painful stimuli, such as a needle, the child reacts, as measured by increases in the child’s stress hormones, heart rate, and blood pressure. When the child is given anesthesia, these responses decrease, which is why doctors often give both the mother and the fetus anesthesia separately in the case of fetal surgery. Nowhere in the Record is it suggested that a fetus is given anesthesia before being subjected to a D&E or an induction abortion.
Given the nature of D&Es and induction abortions, as described above, and the finding that the unborn child has developed pain sensors all over its body by 20 weeks gestational age, this Court concludes that the State has shown a legitimate interest in limiting abortions past 20 weeks gestational age.
That is a very notable ruling if it survives appeal. That’s a big if, but this case shows how the times, they are a changin’.
