On Tuesday, the U.S. Court of Appeals for the Ninth Circuit permanently struck down Arizona’s “fetal pain” law that would have criminalized abortion services after 20 weeks of pregnancy. The panel of judges determined that the 20-week ban is unconstitutional under Roe v. Wade, which guarantees the right to legal abortion until the point of viability at about 24 weeks of pregnancy.
Representatives from the American Civil Liberties Union and the Center for Reproductive Rights, who filed the lawsuit against the 20-week ban, praised the judges’ decision. “We’re glad the court has reaffirmed that states cannot place unlawful burdens on a woman’s right to access safe reproductive health care,” Talcott Camp, the deputy director of ACLU’s Reproductive Freedom Project, said in a statement. Nancy Northrup, the president of the Center for Reproductive Rights, called the decision a “huge victory in the fight to protect women’s fundamental reproductive rights,” and noted that the Ninth Circuit’s decision should send a clear message to the other states that are attempting to limit abortion access before the point of viability.
Indeed, Arizona’s “fetal pain” measure — based on the scientifically-disputed notion that fetuses can feel pain after 20 weeks — is just one of several similar pieces of legislation to land in court. 20-week bans in Idaho and Georgia have also been blocked under the same constitutional logic. Arizona’s own law has actually been blocked since August, when the appeals court issued a temporary injunction right before the law was scheduled to take effect.
Imposing fetal pain measures is a popular anti-choice tactic to effectively chip away at Roe and narrow the window in which women may access legal abortion. Bans on late-term abortions are an especially big anti-choice priority right now, as abortion opponents attempt to capitalize on the high-profile case of illegal abortion provider Kermit Gosnell to misconstrue all later abortions as dangerous procedures. Just this week, Arizona Rep. Trent Franks (R), who has repeatedly attempted to impose a 20-week abortion ban on the District of Columbia, announced his intention to amend his legislation to push for a nationwide restriction.
When Arizona first passed its fetal pain law, it represented the most stringent abortion ban in the nation. Since the state defined gestation differently than other states, calculating from the moment of the woman’s missed period, the law could have potentially cut off legal abortion services at just 18 weeks of pregnancy. However, since Arizona first passed that piece of legislation last March, states have moved the goalposts even further. Arkansas banned abortions after 12 weeks, and North Dakota placed the cut-off at just six weeks of pregnancy.