Ninth Circuit’s Inflexibly Pro-Abortion Ruling Invites Supreme Court Review

By 

Walter M. Weber

|
October 30, 2013

3 min read

Pro Life

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The abortion issue may be back squarely before the Supreme Court. The ACLJ on Oct. 29 filed an amicus brief urging the High Court to take the case of Horne v. Isaacson. In this case, the federal court of appeals for the Ninth Circuit has ruled that, for more than the first five months of pregnancy, the U.S. Constitution contains a right for a pregnant woman to abort her baby for any reason, regardless of risks even to the mother’s health, and regardless of how horrific the pain an abortion may cause to the baby in the womb.

Let’s take that slowly.

a. Stage of gestation: The challenged Arizona statute only prohibits abortions after 20 weeks of gestation. That’s halfway through pregnancy (four-and-a-half months). The baby has arms, legs, a heartbeat, a face, and ears that can hear sounds even outside the womb. The baby is still most likely somewhat too young to survive delivery (though babies born at just 21 weeks have been reported to survive), however, and does not count as “viable,” for legal purposes, for another four weeks.

b. Reason for aborting: The Ninth Circuit said that even at this late stage of pregnancy, there is a constitutional right to abort the baby for any reason or no reason. Abortions cannot be limited, the court said, to “health” reasons: “no health exception, no matter how broad, could save it.”

c. Danger to the mother: The state argued that abortions this late in pregnancy are especially risky. In response to the state’s contention that “there is no right to anunsafe abortion,” the Ninth Circuit declared that this contention “runs squarely up against Roe [v. Wade] and its progeny” – i.e., according to the court of appeals, even dangerous abortions are constitutionally protected.

d. Suffering by the child: The state introduced uncontradicted evidence that unborn babies feel pain from abortions. Irrelevant, said the Ninth Circuit: “no state interest” – even thwarting horrific fetal pain – “is strong enough to support [a ban on abortions after 20 weeks].”

Talk about extreme!

Our friend of the court brief points out how rigidly pro-abortion this ruling is. (The ACLJ brief is available here.) We urge the Supreme Court to “grant review and repudiate the harsh inflexibility of the Ninth Circuit’s interpretation of the constitutional law of abortion.”

Every abortion takes the life of an innocent child and is thus a profound injustice. Arizona has attempted to set a very modest limit on that injustice, but the Ninth Circuit says even this small step in a pro-life direction is unacceptable. It is time for the Supreme Court to step into the fray and restore some sanity here.

The Supreme Court may announce sometime this winter whether it will hear the case of Horne v. Isaacson or just let the Ninth Circuit’s ruling stand. The Court also has the option of putting the case “on hold” while it examines a different abortion case from Oklahoma which is already pending on its docket.