Paul Isaacson v. Tom Horne , 716 F.3d 1213 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL A. ISAACSON, M.D.; WILLIAM No. 12-16670
CLEWELL, M.D.; HUGH MILLER,
M.D., D.C. No.
Plaintiffs-Appellants, 2:12-cv-01501-
JAT
v.
TOM HORNE, Attorney General of OPINION
Arizona, in his official capacity;
WILLIAM GERARD MONTGOMERY,
County Attorney for Maricopa
County, in his official capacity;
BARBARA LAWALL, County
Attorney for Pima County, in her
official capacity; ARIZONA MEDICAL
BOARD; LISA WYNN, Executive
Director of the Arizona Medical
Board, in her official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
November 5, 2012—San Francisco, California
Filed May 21, 2013
2 ISAACSON V. HORNE
Before: Mary M. Schroeder, Andrew J. Kleinfeld, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Concurrence by Judge Kleinfeld
SUMMARY*
Civil Rights
The panel reversed the district court’s order denying
declaratory and injunctive relief to plaintiffs and held that the
Constitution does not permit the Arizona legislature to
prohibit abortion beginning at twenty weeks gestation, before
the fetus is viable.
The panel held that under controlling Supreme Court
precedent, Arizona may not deprive a woman of the choice to
terminate her pregnancy at any point prior to viability. The
panel held that Arizona House Bill 2036, enacted in April
2012, effects such a deprivation by prohibiting abortion from
twenty weeks gestational age through fetal viability. The
panel held that the twenty-week law is therefore
unconstitutional under an unbroken stream of Supreme Court
authority, beginning with Roe v. Wade, 410 U.S. 113 (1973),
and ending with Gonzales v. Carhart, 550 U.S. 124 (2007).
Concurring, Judge Kleinfeld stated that the current state
of the law compelled him to concur, and that what controls
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ISAACSON V. HORNE 3
this case is that the parties do not dispute that the twenty-
week line Arizona has drawn is three or four weeks prior to
viability.
COUNSEL
Janet Crepps (argued) and David Brown, Center for
Reproductive Rights, New York, New York; Christopher A.
Lavoy, Tiffany & Bosco, P.A., Phoenix, Arizona; Janie F.
Shulman and Nancy R. Thomas, Morrison & Foerster LLP,
Los Angeles, California, for Plaintiff-Appellant Paul A.
Isaacson.
Susan Talcott Camp and Alexa Kolbi-Molinas, American
Civil Liberties Union Foundation, New York, New York;
Daniel Pochoda and Kelly Flood, American Civil Liberties
Union Foundation of Arizona, Phoenix, Arizona, for
Plaintiffs-Appellants William Clewell and Hugh Miller.
David R. Cole (argued), Solicitor General; Thomas M.
Collins, Assistant Attorney General, Arizona Attorney
General’s Office, Phoenix, Arizona, for Defendants-
Appellees Thomas C. Horne, Arizona Attorney General,
Arizona Medical Board, and Lisa Wynn, Executive Director
of the Arizona Medical Board.
William G. Montgomery (argued), County Attorney for
Maricopa County; Douglas L. Irish, J. Kenneth Mangum,
Louis F. Comus III, Deryck R. Lavelle, and Bruce P. White,
Maricopa County Attorney’s Office, Phoenix, Arizona, for
Defendant-Appellee William Montgomery.
4 ISAACSON V. HORNE
Paula J. Perrera (argued), Deputy County Attorney, Pima
County Attorney’s Office, Tucson, Arizona, for Defendant-
Appellee Barbara LaWall.
Beth H. Parker and Gabriel N. White, Arnold & Porter LLP,
San Francisco, California; Lisa Hill Fenning, Los Angeles,
California; Kimberley A. Parker, Susan Friedman, and
Carolyn Jacobs Chachkin, Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, D.C.; Alan E. Schoenfeld and Fiona
J. Kaye, New York, New York, for Amici Curiae American
College of Obstetricians and Gynecologists and American
Congress of Obstetricians and Gynecologists.
Denise M. Burke, Mailee R. Smith, and Clarke D. Forsythe,
Americans United for Life, Washington, D.C., for Amici
Curiae Association of American Physicians & Surgeons,
American Association of Pro-Life Obstetricians and
Gynecologists, Christian Medical & Dental Associations,
Catholic Medical Association, Physicians for Life, and
National Association of Prolife Nurses.
David J. Cantelme, Cantelme & Browne, P.L.C., Phoenix,
Arizona; Joshua A. Kredit, Center for Arizona Policy, Inc.,
Phoenix, Arizona, for Amicus Curiae Center for Arizona
Policy, Inc.
Teresa Stanton Collett, University of St. Thomas School of
Law, Minneapolis, Minnesota; Steven H. Aden and M. Casey
Mattox, Alliance Defending Freedom, Washington, D.C., for
Amicus Curiae Doctors on Fetal Pain.
ISAACSON V. HORNE 5
Gregrey G. Jernigan, General Counsel, Office of the
President of the Arizona State Senate, Phoenix, Arizona;
Peter A. Gentala, Office of the Speaker of the Arizona House
of Representatives, Phoenix, Arizona, for Amici Curiae
Andrew M. Tobin, Speaker of the Arizona House of
Representatives, and Steve Pierce, President of the Arizona
Senate.
Mathew D. Staver and Anita L. Staver, Liberty Counsel,
Maitland, Florida; Stephen M. Crampton and Mary E.
McAlister, Liberty Counsel, Lynchburg, Virginia, for Amicus
Curiae Liberty Counsel.
OPINION
BERZON, Circuit Judge:
Our question is whether the Constitution permits the
Arizona legislature to prohibit abortion beginning at twenty
weeks gestation, before the fetus is viable. We hold that it
does not.
Arizona House Bill 2036 (“H.B. 2036” or “the Act”),
enacted in April 2012, forbids, except in a medical
emergency, abortion of a fetus determined to be of a
gestational age of at least twenty weeks. Arizona law
separately prohibits abortions after fetal viability unless
necessary to preserve the pregnant woman’s life or health.
See Ariz. Rev. Stat. § 36-2301.01(A)(1). The challenged
provision in Section 7 of H.B. 2036 (“Section 7” or “the
6 ISAACSON V. HORNE
twenty-week law”)1 extends the abortion ban earlier in
pregnancy, to the period between twenty weeks gestation and
fetal viability. Because Section 7 deprives the women to
whom it applies of the ultimate decision to terminate their
pregnancies prior to fetal viability, it is unconstitutional under
a long line of invariant Supreme Court precedents.
Since Roe v. Wade, 410 U.S. 113 (1973), the Supreme
Court case law concerning the constitutional protection
accorded women with respect to the decision whether to
undergo an abortion has been unalterably clear regarding one
basic point, although it has varied in other respects: a woman
has a constitutional right to choose to terminate her
pregnancy before the fetus is viable. A prohibition on the
exercise of that right is per se unconstitutional. While the
state may regulate the mode and manner of abortion prior to
fetal viability, it may not proscribe a woman from electing
abortion, nor may it impose an undue burden on her choice
through regulation.
The challenged Arizona statute’s medical emergency
exception does not transform the law from a prohibition on
abortion into a regulation of abortion procedure. Allowing a
physician to decide if abortion is medically necessary is not
the same as allowing a woman to decide whether to carry her
own pregnancy to term. Moreover, regulations involve
limitations as to the mode and manner of abortion, not
preclusion of the choice to terminate a pregnancy altogether.
Arizona’s twenty-week law is a preclusion prior to fetal
1
Section 7 of H.B. 2036 encompasses provisions to be codified at
Arizona Revised Statutes § 36-2158 and § 36-2159. As this lawsuit
challenges only the provision to be codified at § 36-2159, all references
to Section 7 in this opinion denote only the challenged portion thereof.
ISAACSON V. HORNE 7
viability and is thus invalid under binding Supreme Court
precedent.
The district court erred in denying declaratory and
injunctive relief and entering judgment in favor of the State.
We therefore reverse.
Background
I.
On April 12, 2012, Arizona Governor Jan Brewer signed
H.B. 2036 into law, amending title 36, chapter 20, article 1 of
the Arizona Revised Statutes, which governs the availability
and performance of abortions in the state. The Act was to go
into effect on August 2, 2012, but we granted an emergency
injunction on August 1, 2012, staying enforcement of the
challenged provision pending this appeal.
The challenged portion of Section 7, codified at Arizona
Revised Statutes § 36-2159, reads:
A. Except in a medical emergency, a person
shall not perform, induce or attempt to
perform or induce an abortion unless the
physician or the referring physician has first
made a determination of the probable
gestational age of the unborn child. In making
that determination, the physician or referring
physician shall make any inquiries of the
pregnant woman and perform or cause to be
performed all medical examinations, imaging
studies and tests as a reasonably prudent
physician in the community, knowledgeable
8 ISAACSON V. HORNE
about the medical facts and conditions of both
the woman and the unborn child involved,
would consider necessary to perform and
consider in making an accurate diagnosis with
respect to gestational age.
B. Except in a medical emergency, a person
shall not knowingly perform, induce or
attempt to perform or induce an abortion on a
pregnant woman if the probable gestational
age of her unborn child has been determined
to be at least twenty weeks.
Ariz. Rev. Stat. § 36-2159. Arizona law defines “medical
emergency” as:
a condition that, on the basis of the
physician’s good faith clinical judgment, so
complicates the medical condition of a
pregnant woman as to necessitate the
immediate abortion of her pregnancy to avert
her death or for which a delay will create
serious risk of substantial and irreversible
impairment of a major bodily function.
Ariz. Rev. Stat. § 36-2151(6). The stated purpose of the Act
is to “[p]rohibit abortions at or after twenty weeks of
gestation, except in cases of a medical emergency, based on
the documented risks to women’s health and the strong
medical evidence that unborn children feel pain during an
ISAACSON V. HORNE 9
abortion at that gestational age.” H.B. 2036, sec. 9(B)(1).2
The Act lists a number of legislative findings in support of
the assertions in the purpose provision, with citations to
medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).
II.
The plaintiffs in this action are three board-certified
obstetrician-gynecologists who practice in Arizona (“the
Physicians”). In July 2012, they filed suit in the United
States District Court for the District of Arizona, seeking
declaratory and injunctive relief against enforcement of
Section 7 on behalf of themselves and of their patients
wishing to terminate pre-viability3 pregnancies at or after
twenty weeks.4 Their complaint named three state defendants
and two county defendants: the Attorney General of Arizona,
Tom Horne; the Arizona Medical Board; and the Executive
Director of the Arizona Medical Board, Lisa Wynn
(collectively “State Defendants”); the County Attorney for
Pima County, Barbara LaWall; and the County Attorney for
Maricopa County, William Montgomery.
2
“Gestational age,” as used by the Arizona legislature and throughout
this opinion, refers to the age of a fetus calculated from the first day of the
pregnant woman’s last menstrual period. See Ariz. Rev. Stat. § 36-
2151(4).
3
As used throughout this opinion, “viability” refers to “the time at
which there is a realistic possibility of maintaining and nourishing a life
outside the womb.” Planned Parenthood v. Casey, 505 U.S. 833, 870
(1992) (citing Roe, 410 U.S. at 163).
4
The parties to this suit agree that no fetus is viable at twenty weeks
gestational age and that a healthy fetus typically attains viability at twenty-
three or twenty-four weeks, at the earliest.
10 ISAACSON V. HORNE
In their respective practices, each of the Physicians
performs abortions before fetal viability and at and after
twenty weeks gestational age. They assert that their patients
seek pre-viability abortions “for a variety of reasons,
including that continuation of the pregnancy poses a threat to
their health, that the fetus has been diagnosed with a medical
condition or anomaly, or that they are losing the pregnancy
(‘miscarrying’).” Under Arizona’s twenty-week law, the
complaint alleges, these women will be unable to terminate
their pregnancies before fetal viability unless they have a
medical emergency falling within the Act’s narrow exception.
Therefore, the Physicians assert, the law violates their
patients’ Fourteenth Amendment substantive due process
rights.
The Physicians moved for a preliminary injunction, which
the State Defendants and Defendant Montgomery opposed.
Defendant Montgomery also filed a motion to dismiss the
action. After Defendant LaWall expressed support for the
preliminary injunction, Defendant Montgomery sought her
dismissal as a party defendant.5
On July 25, 2012, the district court held a hearing on the
Physicians’ motion for a preliminary injunction and the
motions to dismiss. Following the hearing, and without any
prior notice to the parties, the court sua sponte and
retroactively consolidated the preliminary injunction hearing
with a trial on the merits and issued a final decision denying
all relief. The order denied the Physicians’ requests for both
5
Because Defendant LaWall neither opposed the Physicians’ motion for
a preliminary injunction nor argued in favor of Section 7 before this court,
references in this opinion to Defendants’ arguments refer only to the State
Defendants and/or to Defendant Montgomery.
ISAACSON V. HORNE 11
preliminary and permanent injunctions and for a declaratory
judgment. The court simultaneously denied Defendants’
motion to dismiss the action and denied as moot the motion
to dismiss Defendant LaWall.
The district court’s decision was premised on three central
conclusions: First, although the Physicians characterized their
suit as an as-applied challenge because limited to those post-
twenty-week abortions that occur before viability, the court
held that the suit is properly considered a facial challenge.
The court recognized that the application of Section 7
challenged by the Physicians is the law’s only effective
application: to prohibit pre-viability abortions from twenty
weeks gestation.6
Second, the court held that Section 7 regulates, rather than
prohibits, abortion at and after twenty weeks gestational age,
principally because it contains a medical emergency
exception permitting some abortions after twenty weeks
gestation. The law “is not a ban on previability abortions,”
the court stated, “but is rather a limit on some previability
abortions between 20 weeks gestational age and viability.”
Finally, the court determined that, considered as a
regulation rather than a prohibition, the challenged provision
of H.B. 2036 may “prompt a few women, who are
6
As noted supra, prior to the adoption of H.B. 2036, Arizona law
already prohibited post-viability abortions. See Ariz. Rev. Stat. § 36-
2301.01(A)—(B) (“A physician shall not knowingly perform an abortion
of a viable fetus unless . . . [t]he physician states in writing before the
abortion is performed that the abortion is necessary to preserve the life or
health of the woman, specifying the medical indications for and the
probable health consequences of the abortion. . . . This section does not
apply if there is a medical emergency.”).
12 ISAACSON V. HORNE
considering abortion as an option, to make the ultimate
decision earlier than they might otherwise have made it,” but
the law does not impose a substantial obstacle to abortions,
because it does not strip women of the ability to choose to
terminate their pregnancies before twenty weeks. This “time
limitation” on the right to obtain a pre-viability abortion, the
district court concluded, is justified by legitimate state
interests in fetal life and the health of pregnant women.
For the reasons summarized above, the district court
concluded that the Physicians’ facial challenge to Section 7
fails. In the district court’s view, an as-applied challenge by
an affected pregnant woman would be the proper vehicle for
determining whether the law unconstitutionally deprives a
woman of “the right to make the abortion choice
previability.”
The Physicians timely appealed.
Discussion
I.
We begin by addressing two preliminary issues.
First, the district court presumed the parties “agree that
the facts at issue in this case are not materially in dispute, and
agree that the Court needs no additional evidence or legal
argument to reach its decision.” On that basis, the court
invoked Federal Rule of Civil Procedure 65(a)(2) and
consolidated the preliminary injunction hearing with a trial on
the merits when it issued its opinion.
ISAACSON V. HORNE 13
“A district court may consolidate a preliminary injunction
hearing with a trial on the merits,” but only when it provides
the parties with “clear and unambiguous notice [of the
intended consolidation] either before the hearing commences
or at a time which will afford the parties a full opportunity to
present their respective cases.” Air Line Pilots Ass’n Int’l v.
Alaska Airlines, Inc., 898 F.2d 1393, 1397 (9th Cir. 1990)
(alteration in original) (quoting Univ. of Tex. v. Camenisch,
451 U.S. 390, 395 (1981)) (internal quotation marks omitted);
see also Fed. R. Civ. P. 65(a)(2). No such notice occurred
here, nor is there any indication that the parties requested or
favored consolidation. In fact, Defendant Montgomery
specifically registered in advance his objection to “the
hearing being turned into a hearing on a permanent injunction
under Rule 65,” citing time pressures that would prevent
assembly of necessary data in support of his arguments.
Were the factual record or the district court’s factual
findings of pertinence to our decision, we would be troubled
by the procedure followed. But neither party has challenged
the district court’s approach. And because we ultimately
agree with the Physicians that this case is fully controlled by
binding precedent, the truncated nature of the record does not
matter to our decision. We therefore do not consider this
procedural matter further. For the same reason, we do not
address whether the district court’s “findings” are supported
by the record or discuss the degree of deference owed to the
legislative findings recited in the Act.7
7
We note, however, that the sort of “legislative facts” addressed by the
parties and by the district court are often considered by appellate courts
from publicly available primary sources even if not developed in the
record. See, e.g., McCormack v. Hiedeman, 694 F.3d 1004, 1016–18 &
nn.8–9, 1022 n.12 (9th Cir. 2012) (citing medical studies regarding the
14 ISAACSON V. HORNE
Second, the district court did not address the Physicians’
standing to bring a challenge on their own behalf and that of
their patients. “We nonetheless recognize our independent
obligation to examine our own jurisdiction,” Indep. Living
Ctr. of S. Cal. v. Shewry, 543 F.3d 1050, 1064 (9th Cir. 2008)
(internal quotation marks omitted), and therefore, as the issue
came up at oral argument, briefly address the Physicians’
Article III standing.
To satisfy Article III standing, the Physicians must
demonstrate that they suffer concrete injury that is actual or
imminent, not conjectural or hypothetical; that there is a
causal connection between this injury and the challenged
statute; and that the injury will likely be redressed by a
favorable decision. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992).
In their complaint and accompanying affidavits, the
Physicians allege that they have performed and will continue
to perform pre-viability abortions on patients at or after
twenty weeks gestation, for which they would face criminal
penalties should the twenty-week law go into effect. “A
physician has standing to challenge an abortion law that poses
health effects of abortion and statistics on the availability and performance
of abortions in Idaho and nationally); Roe, 410 U.S. at 149 n.44 (citing
medical research regarding morbidity and mortality rates for abortions and
childbirth); Gonzales v. Carhart, 550 U.S. 124, 173 n.3 (2007) (Ginsburg,
J., dissenting) (citing numerous medical articles regarding obstacles to
abortion and associated risks); see also Allison Orr Larsen, Confronting
Supreme Court Fact Finding, 98 Va. L. Rev. 1255, 1262 (2012)
(presenting research documenting “over one hundred examples of
Supreme Court opinions from the last fifteen years that make assertions
of legislative fact supported by an authority never mentioned in any of the
briefs”).
ISAACSON V. HORNE 15
for him a threat of criminal prosecution.” Diamond v.
Charles, 476 U.S. 54, 65 (1986). Whether the Physicians
continue to perform pre-viability abortions past twenty weeks
and risk prosecution under the statute or desist from
performing them to avoid penalties, their liberty is concretely
affected. See Planned Parenthood of Idaho, Inc. v. Wasden,
376 F.3d 908, 916–17 (9th Cir. 2004). Therefore, the
Physicians have alleged a sufficiently concrete injury to
challenge the provision banning providers from performing
abortions on women whose pregnancies have reached twenty
weeks gestation.
The Physicians do not seek relief on the basis of their own
right to perform abortions, however, but on the basis of the
constitutional right of their patients. Courts ordinarily do not
allow third parties to litigate the rights of others. “Since at
least Singleton v. Wulff, however, it has been held repeatedly
that physicians may acquire jus tertii standing to assert their
patients’ due process rights in facial challenges to abortion
laws.” Id. at 917 (citing Singleton v. Wulff, 428 U.S. 106,
117–18 (1976) (plurality opinion)). Recognizing the
confidential nature of the physician-patient relationship and
the difficulty for patients of directly vindicating their rights
without compromising their privacy, the Supreme Court has
entertained both broad facial challenges and pre-enforcement
as-applied challenges to abortion laws brought by physicians
on behalf of their patients. See, e.g., Stenberg v. Carhart,
530 U.S. 914, 922–23 (2000); Planned Parenthood v. Casey,
505 U.S. 833, 845 (1992); City of Akron v. Akron Ctr. for
Reprod. Health, 462 U.S. 416, 440 n.30 (1983), overruled on
other grounds by Casey, 505 U.S. at 882 (plurality opinion);
Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52,
62 & n.2 (1976).
16 ISAACSON V. HORNE
There is no dispute that the injury of which the Physicians
complain is traceable to the challenged statute. Nor is there
any doubt that a favorable decision, enjoining enforcement of
the twenty-week law, would redress the injury. As the
Physicians who bring this challenge to Section 7 therefore
have standing to sue, we may consider the constitutional
arguments they raise on behalf of their patients seeking pre-
viability abortions at or after twenty weeks gestation. See
Wasden, 376 F.3d at 918.
II.
A.
A woman has a constitutional right to choose to terminate
her pregnancy before the fetus is viable without undue
interference by the state. See Casey, 505 U.S. at 846.8 This
right is encompassed within a woman’s right to personal
privacy, see Roe, 410 U.S. at 153–54; see also Wasden,
376 F.3d at 921 (recognizing that “[a]dult women have a
Fourteenth Amendment right to terminate a pre-viability
pregnancy”), and “is a rule of law and a component of liberty
we cannot renounce,” Casey, 505 U.S. at 871 (plurality
opinion). At bottom, the right recognized by Roe and
8
The three-Justice lead opinion in Casey is in some sections the opinion
of the Court and in other sections a limiting concurrence. Although Part
IV of the opinion, enunciating the undue burden test, was endorsed by
only three Justices, as the narrowest ground for the Court’s holding it is
as binding on this court as would be a majority opinion. See Wasden,
376 F.3d at 921 n.11 (citing Marks v. United States, 430 U.S. 188, 193
(1977); Planned Parenthood of Wis. v. Doyle, 162 F.3d 463, 473 (7th Cir.
1998)). Unless otherwise specified, all references to Casey are to the parts
of the joint opinion representing the opinion of the Court.
ISAACSON V. HORNE 17
reaffirmed by Casey is “the woman’s right to make the
ultimate decision.” Id. at 877 (emphasis added).
A woman’s right to terminate her pregnancy is not,
however, absolute. “Roe did not declare an unqualified
‘constitutional right to an abortion.’ . . . Rather, the right
protects the woman from unduly burdensome interference
with her freedom to decide whether to terminate her
pregnancy.” Maher v. Roe, 432 U.S. 464, 473–74 (1977)
(emphasis added). A woman’s right must be considered
against important state interests in “safeguarding health, in
maintaining medical standards, and in protecting potential
life.” Roe, 410 U.S. at 154.
Under the trimester framework originally established in
Roe, those interests could not justify any regulation of
abortion during the first trimester of pregnancy. Prior to
twelve weeks gestation, the Court held, “the abortion decision
and its effectuation must be left to the medical judgment of
the pregnant woman’s attending physician.” Id. at 164.
During the second trimester, Roe concluded, the state’s
interest in the health of the pregnant woman is sufficiently
compelling to permit regulation of “the abortion procedure in
ways that are reasonably related to maternal health.” Id. The
state’s interest in “the potentiality of human life,” however,
only becomes compelling at the point of viability; thereafter,
Roe held, the state “may, if it chooses, regulate and even
proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life
or health of the mother.” Id. at 164–65.
Casey jettisoned this trimester framework and the strict
scrutiny standard applied in Roe, see Casey, 505 U.S. at
871–73 (plurality opinion), holding that state interests in
18 ISAACSON V. HORNE
women’s health and fetal life are present and “substantial”
from the outset of pregnancy, id. at 846 (joint opinion), 876
(plurality opinion). But Casey reaffirmed—and Gonzales v.
Carhart, 550 U.S. 124 (2007), has since reiterated—Roe’s
central holding: “Before viability, the State’s interests are not
strong enough to support a prohibition of abortion or the
imposition of a substantial obstacle to the woman’s effective
right to elect the procedure.” Casey, 505 U.S. at 846;
Gonzales, 550 U.S. at 145. That principle is binding upon us
and decides this case.
B.
Defendants contend otherwise, characterizing the viability
line first drawn in Roe, reaffirmed in Casey, and recognized
again in Gonzales, as dicta rather than controlling Supreme
Court precedent. That characterization is most certainly
incorrect.
Roe identified fetal viability as the earliest point in
pregnancy when the state’s interest becomes sufficiently
compelling to justify not just regulation of the abortion
procedure, but proscription of abortion unless necessary to
preserve the life or health of the mother. Roe, 410 U.S. at
163–65. Since Roe, the Supreme Court and lower federal
courts have repeated over and over again that viability
remains the fulcrum of the balance between a pregnant
woman’s right to control her body and the state’s interest in
preventing her from undergoing an abortion.
Colautti v. Franklin, for example, emphasized: “Viability
is the critical point. And [the Court has] recognized no
attempt to stretch the point of viability one way or the other.”
439 U.S. 379, 389 (1979). City of Akron v. Akron Center for
ISAACSON V. HORNE 19
Reproductive Health echoed Roe’s holding that viability
marks the point after which the state may proscribe abortion;
before then, only regulation is permissible. 462 U.S. at
419–20 & n.1, 428. And while Webster v. Reproductive
Health Services upheld a law requiring doctors to test for
viability from twenty weeks gestational age on, 492 U.S. 490,
519–20 (1989), it did not alter the principle that
viability—not gestational age—remains the “critical point,”
id. at 529 (O’Connor, J., concurring).9
Although the plurality opinion in Casey abandoned Roe’s
trimester framework, 505 U.S. at 873, the Court yet again
affirmed “Roe’s central holding, that viability marks the
earliest point at which the State’s interest in fetal life is
constitutionally adequate to justify a legislative ban on
nontherapeutic abortions,” id. at 860 (joint opinion)
(emphasis added). The plurality opinion explained that the
Court was again drawing the line at viability “so that before
that time the woman has a right to choose to terminate her
pregnancy,” emphasizing that “there is no line other than
viability which is more workable.” Id. at 870 (plurality
opinion).
Echoing the joint opinion in Casey, Stenberg took as the
starting point of its analysis the “established principle[]” that,
“before ‘viability . . . the woman has a right to choose to
9
The central difference between the Arizona statute here challenged and
the Missouri statute at issue in Webster is that the Arizona law not only
requires testing of gestational age prior to the performance of an abortion,
but also predicates the permissibility of an abortion on gestational age.
The statute at issue in Webster required doctors to perform tests necessary
to determine gestational age, but it predicated the permissibility of
abortion on the physician’s assessment of fetal viability, not gestational
age. See Webster, 492 U.S. at 500–01.
20 ISAACSON V. HORNE
terminate her pregnancy.’” 530 U.S. at 921 (quoting Casey,
505 U.S. at 870 (plurality opinion)) (emphasis added).10
Finally, the Supreme Court’s most recent abortion
decision, Gonzales, preserved the viability line as the limit on
prohibitions of abortion, applying Casey rather than
overturning it. Gonzales left in place the earlier rulings that,
[b]efore viability, a State ‘may not prohibit
any woman from making the ultimate decision
to terminate her pregnancy.’ It also may not
impose upon this right an undue burden,
which exists if a regulation’s ‘purpose or
effect is to place a substantial obstacle in the
path of a woman seeking an abortion before
the fetus attains viability.’
Gonzales, 550 U.S. at 146, 156 (emphasis added) (citation
omitted) (quoting Casey, 505 U.S. at 878–79 (plurality
opinion)). From those premises, Gonzales went on to
consider the constitutionality of the Partial-Birth Abortion
Ban Act of 2003, 18 U.S.C. § 1531, framing the question
before it as “whether the Act, measured by its text in this
facial attack, imposes a substantial obstacle to late-term, but
previability, abortions.” Id. at 156.
10
Although the Court in Stenberg quoted from the plurality opinion in
Part IV of Casey, the same principle is enunciated in Part I of the joint
opinion, which is the opinion of the Court: “Before viability, the State’s
interests are not strong enough to support a prohibition of abortion or the
imposition of a substantial obstacle to the woman’s effective right to elect
the procedure.” Casey, 505 U.S. at 846.
ISAACSON V. HORNE 21
This court, similarly, has reaffirmed and applied the
viability line in abortion cases. In Guam Society of
Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th
Cir. 1992), we acknowledged that the core of Roe, including
its holding that the state may not proscribe abortion before
fetal viability, survived Webster. See id. at 1372–74.
Because the challenged statute at issue in Guam criminalized
abortions prior to viability, we held it unconstitutional. Id.
Both Wasden and McCormack v. Hiedeman, 694 F.3d 1004
(9th Cir. 2012), took as their starting points a woman’s
“Fourteenth Amendment right to terminate a pre-viability
pregnancy.” Wasden, 376 F.3d at 921; accord McCormack,
694 F.3d at 1015, 1018 (enjoining enforcement of a statute
that imposed a substantial obstacle to abortion of a nonviable
fetus).11
Other federal courts have also emphasized the importance
of the viability line when evaluating the constitutionality of
state abortion laws. For example, the Tenth Circuit struck
down a ban on abortions after twenty weeks gestation
because, by irrebuttably presuming viability at twenty weeks,
the law prohibited the abortion of fetuses that may not be
viable. See Jane L. v. Bangerter, 102 F.3d 1112, 1115–18
(10th Cir. 1996). The Sixth Circuit determined a state
abortion law unconstitutional because it prohibited several of
the most common pre-viability abortion methods, effectively
precluding women from terminating their pregnancies before
11
In addition to the enjoined statute, the plaintiff in McCormack also
challenged another Idaho law, the Pain-Capable Unborn Child Protection
Act (“the PUCPA”). Like the Arizona statute at issue here, the PUCPA
bans abortions from twenty weeks gestational age. See McCormack,
694 F.3d at 1009; Idaho Code §§ 18-505–18-507. We did not reach the
constitutionality of the ban, however, because the plaintiff lacked standing
to challenge it. McCormack, 694 F.3d at 1024–25.
22 ISAACSON V. HORNE
fetal viability. See Northland Family Planning Clinic, Inc. v.
Cox, 487 F.3d 323, 337 (6th Cir. 2007).
As Roe and its many progeny make clear, viability,
although not a fixed point, is the critical point. The Supreme
Court has recognized that viability varies among pregnancies
and that improvements in medical technology will both push
later in pregnancy the point at which abortion is safer than
childbirth and advance earlier in gestation the point of fetal
viability. See Casey, 505 U.S. at 860. Indeed, such trends led
Justice O’Connor to remark, prior to Casey, that “the Roe
framework . . . is on a collision course with itself.” Akron,
462 U.S. at 458 (O’Connor, J., dissenting). But while “time
has overtaken some of Roe’s factual assumptions,” prompting
the abandonment of the trimester framework, “no changes of
fact have rendered viability more or less appropriate as the
point at which the balance of interests tips.” Casey, 505 U.S.
at 860–61. Evolving medical realities have not eroded Roe’s
central legal holding—that “viability marks the earliest point
at which the State’s interest in fetal life is constitutionally
adequate to justify a legislative ban on nontherapeutic
abortions.” Id. at 860. Casey could not have been clearer
when it stated:
The soundness or unsoundness of that
constitutional judgment in no sense turns on
whether viability occurs at approximately 28
weeks, as was usual at the time of Roe, at 23
to 24 weeks, as it sometimes does today, or at
some moment even slightly earlier in
pregnancy, as it may if fetal respiratory
capacity can somehow be enhanced in the
future. Whenever it may occur, the attainment
of viability may continue to serve as the
ISAACSON V. HORNE 23
critical fact, just as it has done since Roe was
decided.
Id. (emphasis added).
While viability is a “flexible” point, see Danforth,
428 U.S. at 61, it is medically determinable, id. at 64–65.
Precisely because viability varies from pregnancy to
pregnancy, the Supreme Court has held repeatedly that “the
determination of whether a particular fetus is viable is, and
must be, a matter for the judgment of the responsible
attending physician.” Colautti, 439 U.S. at 396 (citing
Danforth, 428 U.S. at 64). That is why a state may not fix
viability at a specific point in pregnancy. See Colautti,
439 U.S. at 388–89; Danforth, 428 U.S. at 64–65. “[N]either
the legislature nor the courts may proclaim one of the
elements entering into the ascertainment of viability—be it
weeks of gestation or fetal weight or any other single
factor—as the determinant of when the State has a
compelling interest in the life or health of the fetus.”
Colautti, 439 U.S. at 388–89; see also McCormack, 694 F.3d
at 1014 n.5.
The parties here agree that no fetus is viable at twenty
weeks gestational age. The district court so recognized,
declaring it undisputed that viability usually occurs between
twenty-three and twenty-four weeks gestation. Accordingly,
Arizona’s ban on abortion from twenty weeks necessarily
prohibits pre-viability abortions. Section 7 is therefore,
without more, invalid.
24 ISAACSON V. HORNE
III.
A.
The district court justified its contrary conclusion by
characterizing the challenged Arizona law as a regulation,
rather than a prohibition, of pre-viability abortions. The court
then reasoned that the statute does not impose an “undue
burden,” under the standard enunciated in Casey for
determining the validity of rules regarding the manner in
which pre-viability abortions are to be provided. Casey
specified that a law imposes an undue burden on a woman’s
right to choose to terminate her pregnancy if it “has the
purpose or effect of placing a substantial obstacle in the path
of a woman seeking an abortion of a nonviable fetus.” Casey,
505 U.S. at 877 (plurality opinion) (emphasis added); see also
Gonzales, 550 U.S. at 156. Where it does so, the “power of
the State reach[es] into the heart of the liberty protected by
the Due Process Clause.” Casey, 505 U.S. at 874 (plurality
opinion). But this “undue burden”/ “substantial obstacle”
mode of analysis has no place where, as here, the state is
forbidding certain women from choosing pre-viability
abortions rather than specifying the conditions under which
such abortions are to be allowed.
Arizona’s twenty-week law deprives women of the right
to choose abortion at all after twenty weeks gestation. Given
inaccuracies in calculating actual gestational age, the period
between twenty weeks from the first day of a woman’s last
menstrual cycle and the point of fetal viability may be a
month or more. See Amicus Brief of the Am. Coll. of
Obstetricians & Gynecologists & Am. Cong. of Obstetricians
& Gynecologists in Support of Plaintiffs-Appellants and
Reversal at 4 n.4, Isaacson v. Horne, No. 12-16670 (9th Cir.
ISAACSON V. HORNE 25
Sept. 13, 2012) (“ACOG Amicus Brief”). There is therefore
no doubt that the twenty-week law operates as a ban on pre-
viability abortion and that it cannot stand under the viability
rule enunciated repeatedly by the Supreme Court, this circuit,
and other circuits: “Before viability, a State may not prohibit
any woman from making the ultimate decision to terminate
her pregnancy.” Gonzales, 550 U.S. at 146 (internal
quotation marks omitted); accord Casey, 505 U.S. at 846.
Defendants and the district court rely most heavily on
Gonzales for their contrary characterization of the Arizona
law. But unlike the statute at issue in Gonzales, Section 7
does not just restrict a woman’s right to choose a particular
method of terminating her pregnancy before viability; it
eliminates a woman’s “right to choose abortion itself.”
Stenberg, 530 U.S. at 930. Even though the fetus is not yet
viable at twenty weeks, only a physician can elect to perform
an abortion from that point, and only in the case of a medical
emergency as narrowly defined under the Arizona statute.
During the period between the twenty-week mark and
viability, the pregnant woman “lacks all choice in the matter”
of whether to carry her pregnancy to term. Casey, 505 U.S.
at 850. Under the Supreme Court’s consistent holdings, that
distinction makes all the difference to the validity of the
Arizona statute.
This consequence—the elimination of a woman’s choice
as to post-twenty-week, pre-viability abortions—is not
merely collateral to the Arizona law’s purpose. Section 7
does not have only the “incidental effect of making it more
difficult or more expensive to procure an abortion.” Id. at
874 (plurality opinion). Nor does it merely “create a
structural mechanism by which the State, or the parent or
guardian of a minor, may express profound respect for the life
26 ISAACSON V. HORNE
of the unborn.” Id. at 877. Instead, the stated purpose of
H.B. 2036 is to “[p]rohibit” a woman from electing abortion
once the fetus reaches twenty weeks gestational age. H.B.
2036, sec. 9(B)(1). Given that Arizona law already forbids
post-viability abortions, see Ariz. Rev. Stat. § 36-2301.01, the
principal effect, and, necessarily, the primary intent, of the
challenged statute is to prohibit pre-viability abortions at and
after twenty weeks.
B.
The district court nonetheless—again, erroneously, given
the binding precedent we have surveyed—applied not the
bright-line rule that the state may not proscribe abortion
before viability, but instead the “undue burden” standard
elaborated in Casey for quite different sorts of statutes. None
of the factors on which the court rested its undue burden
analysis—the continued availability of abortion prior to
twenty weeks, the medical emergency exception in H.B.
2036, the rarity of abortion after twenty weeks, or the state’s
asserted interests in the law—can save a pre-viability ban,
such as Arizona’s twenty-week law, from constitutional
infirmity.
1.
First, the district court held that, because a woman can
obtain a pre-viability abortion prior to twenty weeks, the
challenged law does not deprive her of the “ultimate
decision” to terminate her pregnancy, but merely places a
“time limitation” on that choice. The availability of abortions
earlier in pregnancy does not, however, alter the nature of the
burden that Section 7 imposes on a woman once her
pregnancy is at or after twenty weeks but prior to viability.
ISAACSON V. HORNE 27
And a prohibition on abortion at and after twenty weeks does
not merely “encourage” women to make a decision regarding
abortion earlier than Supreme Court cases require; it forces
them to do so.
Under the twenty-week law, a woman who seeks to
terminate her pregnancy must do so before twenty weeks
gestational age or forfeit her right to choose whether to carry
her pregnancy to term. The Supreme Court has expressly
rejected such attempts to “stretch the point of viability”
earlier in pregnancy, or to peg it to a precise gestational date.
See Colautti, 439 U.S. at 389; Danforth, 428 U.S. at 64.
Under controlling Supreme Court precedent, a woman has a
right to choose to terminate her pregnancy at any point before
viability—not just before twenty weeks gestational age—and
the State may not proscribe that choice.
2.
Second, the district court misconstrued the significance of
the statute’s medical emergency exception. Because Section
7 incorporates an exception for medical emergencies, the
district court concluded that it merely limits, rather than
prohibits, pre-viability abortions from twenty weeks on. But
the law’s emergency exception does not transform it from a
ban into a limitation as to the mode or manner of conducting
abortions. Again, Casey is crystal clear on this point:
“Regardless of whether exceptions are made for particular
circumstances, a State may not prohibit any woman from
making the ultimate decision to terminate her pregnancy
before viability.” 505 U.S. at 879 (plurality opinion)
(emphasis added). As Casey instructs, even with a medical
emergency exception, a proscription on a woman’s choice to
undergo an abortion remains invalid. Id. By permitting
28 ISAACSON V. HORNE
abortions from twenty weeks to viability only at the decision
of a medical professional as to an immediate medical
necessity, Section 7 prohibits women from electing to
terminate their pregnancies prior to fetal viability. See id. at
846 (joint opinion).
Moreover, to be constitutional, even laws that proscribe
post-viability abortions, such as Arizona Revised Statutes
§ 36-2301.01, must contain a health exception. See Roe,
410 U.S. at 164–65; Stenberg, 530 U.S. at 930. “An adequate
health exception . . . is a per se constitutional requirement. . . .
To preclude a woman from receiving a medically necessary
abortion is to impose an unconstitutional burden.” Wasden,
376 F.3d at 922–23. As Casey put it, “the essential holding
of Roe forbids a State to interfere with a woman’s choice to
undergo an abortion procedure if continuing her pregnancy
would constitute a threat to her health.” 505 U.S. at 880.
Accordingly, the absence of an adequate medical exception
may make an otherwise permissible prohibition on post-
viability abortion unconstitutional. See, e.g., Stenberg,
530 U.S. at 930. But the converse is not true: The presence
of a medical exception does not make an otherwise
impermissible prohibition constitutional. The adequacy of
the medical exception has no bearing on whether the
prohibition is permissible in the first place. The twenty-week
law is unconstitutional because it bans abortion at a pre-
viability stage of pregnancy; no health exception, no matter
how broad, could save it.12
12
The Physicians note that the language of the medical exception in the
Arizona law, see Ariz. Rev. Stat. § 36-2151(6), parallels that upheld in
Casey, where the concern was delay, not prohibition, of abortions, under
a 24-hour waiting period and informed consent provision. See Casey,
505 U.S. at 879–81; id. at 885–87 (plurality opinion). The focus on
ISAACSON V. HORNE 29
Because the medical emergency exception will not cover
all women who seek pre-viability abortions at or after twenty
weeks, the challenged provision continues to operate as a
complete bar to the rights of some women to choose to
terminate their pregnancies before the fetus is viable.
Significantly, the emergency exception does not authorize
abortions in cases of fetal anomaly or pregnancy failure,
which do not pose an immediate threat to the woman’s health.
See Ariz. Rev. Stat. § 36-2151(6).
In sum, while a health exception is necessary to save an
otherwise constitutional post-viability abortion ban from
challenge, it cannot save an unconstitutional prohibition on
the exercise of a woman’s right to choose to terminate her
pregnancy before viability.
3.
Nor does the district court’s observation that pre-viability
abortions at and after twenty weeks are relatively rare have
any relevance to the law’s constitutional validity. A
prohibition’s constitutionality is measured by its impact on
those whom it affects, not by the number of people affected.
Casey is lucid on this point as well: “The analysis does not
end with the one percent of women upon whom the statute
operates; it begins there. . . . The proper focus of
constitutional inquiry is the group for whom the law is a
“immediate” danger in the current context, the Physicians contend, could
require doctors to postpone abortions until medical risks pose an imminent
threat to a pregnant woman’s health, when the possibility of medical
complications from abortion may be greater. Defendants dispute this
understanding of the scope of the medical exception. As it is not relevant
to our conclusion, we do not settle this disagreement concerning the
precise implications of the statute’s medical exception.
30 ISAACSON V. HORNE
restriction, not the group for whom the law is irrelevant.”
505 U.S. at 894.
4.
To the litany of justifications given by the district court
for failing to follow the Supreme Court’s clear rule that no
woman may be entirely precluded from choosing to terminate
her pregnancy at any time prior to viability, Defendants add
one more: They argue that the twenty-week law “might be
constitutional based solely on the state’s compelling interest
in maternal health.” Current medical knowledge, Defendants
contend, indicates “abortion by 20 weeks has higher rates of
mortality and health complications for the mother than
carrying the unborn child to term.” Consequently, they
reason, the state may proscribe abortions from twenty weeks
because “there is no right to unsafe abortion” (emphasis
added).
Once more, this suggestion runs squarely up against Roe
and its progeny, including Casey. Recognizing an important
state interest in maternal health, Roe held that “a State may
regulate the abortion procedure to the extent that the
regulation reasonably relates to the preservation and
protection of maternal health.” 410 U.S. at 163 (emphasis
added). Toward this end, the Supreme Court has repeatedly
countenanced informed consent requirements directed at
protecting the health of pregnant women without precluding
a woman’s ability to balance the risk to her own health, once
known, against other considerations.13 See, e.g., Casey,
13
The Physicians and amici curiae writing on their behalf contend that
medical evidence supports neither Defendants’ assertions regarding the
relative risks of abortion nor Defendants’ claims concerning fetal capacity
ISAACSON V. HORNE 31
505 U.S. at 881–84 (plurality opinion); Danforth, 428 U.S. at
67. Casey, for example, upheld a requirement that doctors
inform their patients of the consequences of abortion to their
own health (as well as to the fetus). See 505 U.S. at 882–83
(plurality opinion). Just as for other medical procedures that
carry risks of morbidity or mortality, the requirement upheld
in Casey left women to decide, in consultation with their
medical providers, whether they wish to undertake known
risks.14 Under the challenged Arizona law, however, if a
pregnant woman is at or after twenty weeks gestation, she no
longer can decide whether she is willing to undertake the
risks to her own health posed by abortion; the State has made
that choice for her.
Defendants correctly point out that the existence of
medical or scientific uncertainty regarding either the safety of
abortion after twenty weeks gestational age or fetal capacity
to experience pain from twenty weeks gestation. See, e.g., ACOG Amicus
Brief at 14–15 & nn.13–14 (arguing that abortion is safer than childbirth
and that the Arizona legislature’s findings address medical risks associated
with abortion, not the relative risks of those procedures compared to
childbirth); see also McCormack, 694 F.3d at 1016 n.8 (noting that
numerous studies denounce any link between abortion and the pregnant
woman’s later mental health). Again, we do not consider which medical
experts have the better of the disputes over the underlying medical facts
regarding either the pregnant woman or the fetus, as our decision rests on
binding legal principles.
14
Notably, the Arizona Supreme Court has emphasized that, in the
context of informed consent, “the decision to undergo an operation
belongs to the patient.” Hales v. Pittman, 118 Ariz. 305, 314 (1978). A
more recent case, Simat Corp. v. Arizona Health Care Cost Containment
System, recognized that the privacy clause of the Arizona Constitution
guarantees Arizonans the right “to care for their health and to choose or
refuse the treatment they deem best for themselves.” 203 Ariz. 454, 458
n.2 (2002) (citing Rasmussen v. Fleming, 154 Ariz. 207, 215 (1987)).
32 ISAACSON V. HORNE
to feel pain does not preclude the Arizona legislature from
setting standards for the manner and means through which
abortions are to be provided. See Gonzales, 550 U.S. at
163–64. Such uncertainty “does not foreclose the exercise of
legislative power in the abortion context any more than it
does in other contexts.” Id. at 164. But neither does it
expand legislative power beyond constitutional bounds.
The short of the matter is that, because Arizona’s twenty-
week law acts as a prohibition of, and not merely a limitation
on the manner and means of, pre-viability abortions, under
long-established Supreme Court law no state interest is strong
enough to support it. See Casey, 505 U.S. at 846. Section 7
effectively shifts from viability to twenty weeks gestation the
point at which the state’s asserted interests override a
woman’s right to choose whether to carry a pregnancy to
term. Supreme Court precedent does not countenance such
a shift.
IV.
Finally, we turn to a question to which the district court
devoted considerable attention but which we conclude
ultimately has no bearing on the outcome of the legal issue
before us: whether the Physicians’ suit is properly construed
as a facial or as-applied challenge to the Arizona statute.
The Physicians maintain that they challenge the twenty-
week law only as it applies to pre-viability abortions at or
after twenty weeks gestation; they do not allege Section 7 is
unconstitutional as applied to later-term abortions of viable
fetuses, which none of the Physicians performs. Described in
this fashion, the complaint appears to be “a paradigmatic as-
applied attack [that] challenges only one of the rules in a
ISAACSON V. HORNE 33
statute, a subset of the statute’s applications, or the
application of the statute to a specific factual circumstance.”
Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011).15
But as the district court observed, the twenty-week law only
has practical significance under Arizona law until viability,
because Arizona separately bans post-viability abortion under
§ 36-2301.01. This lawsuit is not challenging the
independent ban on post-viability abortions, and so,
realistically, challenges Section 7 on its face—that is, in all
the situations in which it would actually be determinative.
The precise characterization of the Physicians’ complaint,
however, has little bearing on the resolution of the legal
question before us. “[T]he distinction between facial and as-
applied challenges is not so well defined that it has some
automatic effect or that it must always control the pleadings
and disposition in every case involving a constitutional
challenge.” Citizens United v. Fed. Election Comm’n,
558 U.S. 310, 331 (2010). Instead, the distinction matters
primarily as to the remedy appropriate if a constitutional
violation is found. Id. The substantive legal tests used in
facial and as-applied challenges are “invariant,” Hoye,
653 F.3d at 857, and so our question remains whether the
15
That the statute has not yet been applied to any of the plaintiffs does
not preclude them from bringing a pre-enforcement, as-applied challenge.
Many such challenges have been entertained in the past. See, e.g., Casey,
505 U.S. at 845; Wasden, 376 F.3d at 914; Planned Parenthood of S. Ariz.
v. LaWall, 180 F.3d 1022, 1024–27 (9th Cir. 1999) (applying Casey’s
“undue burden standard” in evaluating a facial challenge to an abortion
regulation). Nor do the plaintiffs have an obligation, as the district court
implied, to argue that the statute would be constitutional under some set
of facts, but was “only unconstitutional as-applied to Plaintiffs.” If they
can show that it is unconstitutional as to the patients on whose behalf they
sue, then plaintiffs have met their burden for an as-applied challenge.
34 ISAACSON V. HORNE
statute deprives a woman of the right to choose to terminate
her pregnancy before viability. That it does so in all cases, or
only in some cases to which it applies, may affect the breadth
of the relief to which plaintiffs are entitled, but not our
jurisdiction to entertain the suit or the constitutional standard
we apply.
The posture of the challenge also can bear on the showing
that plaintiffs must make to prevail. “Facial and as-applied
challenges differ in the extent to which the invalidity of a
statute need be demonstrated.” Legal Aid Servs. of Or. v.
Legal Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010)
(citation and internal quotation marks omitted). Here,
however, there is no practical difference between the two
approaches.
As we have discussed, given the controlling, substantive
legal standards, Section 7 is invalid as applied to every
woman affected by its prohibition on abortions. In other
words, there is a one hundred percent correlation between
those whom the statute affects and its constitutional invalidity
as applied to them. That universal correlation is sufficient to
require declaring the statute entirely invalid, even under the
strict standard enunciated in United States v. Salerno,
481 U.S. 739 (1987), and applicable except in First
Amendment and abortion cases, as there is “no set of
circumstances” to which the statute applies under which it
would be valid. Id. at 745. And, given the one hundred
percent correlation, there is no doubt the special rule that
applies to facial challenges in abortion cases—that plaintiffs
need only show the law challenged is invalid “in a large
fraction of the cases in which [the statute] is relevant,” Casey,
505 U.S. at 895—is also met. See also LaWall, 180 F.3d at
1027.
ISAACSON V. HORNE 35
In contrast, the facial versus as-applied distinction is
relevant when a claimed statutory defect applies to a sub-
category of the people affected by the law, and the court must
determine whether that particular sub-category may challenge
the statute as a whole, including its application to people who
are not similarly situated. Here, because of the one hundred
percent correlation, that usual concern with invalidating an
abortion statute on its face—that the injunctive relief goes
beyond the circumstances in which the statute is invalid to
include situations in which it may not be—does not arise.
In Gonzales, for example, the Court considered whether
the impact of the Partial-Birth Abortion Ban Act on people
for whom the banned abortion method may be medically
necessary was grounds to hold not only that the ban was
unconstitutional as applied to those individuals, but that it
was entirely unconstitutional and could not be applied at all
because it lacked a medical exception. See Gonzales,
550 U.S. at 161–63. The Court concluded that an as-applied
challenge was the proper vehicle through which to seek relief
for the very small subgroup of affected women as to whom
the absence of a medical exception might render the statute
invalid. See id. at 167–68. Here, however, the substantive
constitutional law renders the twenty-week law invalid as to
every woman who would choose to have an abortion but is
precluded from doing so by Section 7.
The Physicians are therefore entitled to the relief they
seek, enjoining the challenged provision of Section 7 in its
entirety.
36 ISAACSON V. HORNE
Conclusion
Under controlling Supreme Court precedent, Arizona may
not deprive a woman of the choice to terminate her pregnancy
at any point prior to viability. Section 7 effects such a
deprivation, by prohibiting abortion from twenty weeks
gestational age through fetal viability. The twenty-week law
is therefore unconstitutional under an unbroken stream of
Supreme Court authority, beginning with Roe and ending
with Gonzales. Arizona simply cannot proscribe a woman
from choosing to obtain an abortion before the fetus is viable.
We therefore REVERSE the district court’s denial of
declaratory and injunctive relief.
KLEINFELD, Senior Circuit Judge, concurring:
The current state of the law compels me to concur.
Arizona defends the statute on two grounds: that the risk
to pregnant women is considerably greater after 20 weeks
gestation, and that fetuses feel pain at least by 20 weeks. The
State has presented substantial medical evidence to support
its legislative findings on both points. The very undeveloped
record affords no basis for rejecting these propositions. But
they do not suffice to justify the statute in the current state of
constitutional law. Were the statute limited to protecting
fetuses from unnecessary infliction of excruciating pain
before their death, Arizona might regulate abortions at or
after 20 weeks by requiring anesthetization of the fetuses
about to be killed, much as it requires anesthetization of
prisoners prior to killing them when the death penalty is
ISAACSON V. HORNE 37
carried out.1 Gonzales v. Carhart similarly suggested that if
a particularly inhumane abortion procedure, removing the
child from the uterus intact and then killing it after it had left
the uterus and entered the vaginal canal, were “truly
necessary in some circumstances, it appears likely an
injection that kills the fetus is an alternative.”2
The plaintiffs argue that some extremely serious birth
defects cannot be detected until after 20 weeks. If that were
all that were problematic about the statute, we could apply the
doctrine of constitutional avoidance, and read the statutory
phrasing to permit post-20 week abortions for serious fetal
anomalies. “The elementary rule is that every reasonable
construction must be resorted to, in order to save a statute
from unconstitutionality.”3 The statutory phrase “serious risk
of substantial and irreversible impairment of a major bodily
function”4 could, albeit with some strain, be read to mean
impairment of the fetus’s bodily functions. Even if not, birth
of a severely deformed child is highly likely to impair all of
a mother’s bodily and mental functions for the rest of her life,
because of the extraordinary burdens the child’s disabilities
and illnesses will likely cause a loving mother to suffer. A
1
See, e.g., Dickens v. Brewer, 631 F.3d 1139, 1142 (9th Cir. 2011)
(“Arizona uses a three-drug lethal injection cocktail that consists of three
chemicals—sodium thiopental, pancuronium bromide and potassium
chloride—administered sequentially. Sodium thiopental is a fast-acting
barbiturate that anesthetizes the inmate and permits the other chemicals to
be administered without causing pain.”).
2
Gonzales v. Carhart, 550 U.S. 124, 164 (2007).
3
Id. at 153 (quotations omitted).
4
Ariz. Rev. Stat. § 36-2301.01 (C)(2).
38 ISAACSON V. HORNE
hellish life of pain may be likely for both mother and child,
in the case of the birth defects described in plaintiffs’
affidavits. A prohibition on abortion “would be
unconstitutional . . . if it subjected women to significant
health risks.”5
But plaintiffs do not limit their challenge to such cases,
they just use them as emotionally appealing anecdotes for
why abortions may be desirable after 20 weeks. Because
their challenge is facial, not an as-applied challenge involving
specific birth defects, our decision cannot be based only on
cases involving severe birth defects undetectable until the 20
to 23 week period.
The State argues that we ought to reject this facial
challenge and await an as-applied challenge. The State
correctly argues that the challengers, in a facial challenge,
must show that there can be “no set of circumstances . . .
under which the Act would be valid.”6 This is why plaintiffs
are not entitled to prevail in this facial challenge case by
showing that in some cases, such as the gross fetal deformity
not detectable until after 20 weeks, the statute poses an
“undue burden.”
Because this is a facial challenge, we have to consider the
opposite question, whether there can be any case in which the
5
Gonzales, 550 U.S. at 161 (quotations omitted).
6
Id. at 167 (quoting Ohio v. Akron Center for Reproductive Health,
497 U.S. 502, 514 (1990)). The Court in Gonzales notes, but does not
resolve, the tension between the “no set of facts” standard in Akron and
the “large fraction of the cases” standard in Planned Parenthood v. Casey,
505 U.S. 833 (1992).
ISAACSON V. HORNE 39
burden is not “undue.” To do so, we must hypothesize cases
in which the statutory “burden” on abortion might be less
obviously troubling. So let us suppose that the statute allows
abortions on fetuses that are perfectly normal, as most are,
and that the reason for the mother’s decision to obtain a late
abortion is that her partner, upon noticing her previously
undisclosed pregnancy, pressures her to do so. The question
we must answer in this facial challenge case is whether a state
may prohibit a post-20 week but previability abortion where
the mother’s choice results not from detection of a likely birth
defect, not from health risks to the fetus or the mother, but
from her decision made in the context of the ordinary
pressures of life. Such cases probably occur in substantial
numbers, because ambivalence, moral strain, economic strain,
and relationship strain may sometimes accompany pregnancy.
What controls this case is that the parties do not dispute
that the 20-week line Arizona has drawn is three or four
weeks prior to viability. Defendants do not argue that the 20
to 23 or 24 week fetuses protected by the statute are viable,
and offer no evidence to that effect. We are bound, in this
particular case, by the absence of any factual dispute as to
whether the fetuses to be killed between gestational ages 20
and 23 or 24 weeks are viable. The decision in this case
cannot, of course, establish the factual medical question of
whether they are viable, because non-viability is the
underlying factual assumption of both parties in today’s case.
For this case, Arizona concedes nonviability.
Viability is the “critical fact” that controls
constitutionality.7 That is an odd rule, because viability
changes as medicine changes. As Planned Parenthood v.
7
Planned Parenthood v. Casey, 505 U.S. 833, 860 (1992).
40 ISAACSON V. HORNE
Casey noted, between Roe v. Wade8 in 1973 and the time
Casey was decided in 1992, viability dropped from 28 weeks
to 23 or 24 weeks, because medical science became more
effective at preserving the lives of premature babies.9 The
briefs make good arguments for why viability should not
have the constitutional significance it does, but under
controlling Supreme Court decisions, it does indeed have that
significance. And even though medical science for premature
babies may advance to where they are viable three or four
weeks earlier, Arizona does not claim that science has done
so.
Thus this case has to be decided on the assumption that
the statute applies to non-viable fetuses, and that the statute
before us prohibits abortions of non-viable fetuses past 20
weeks of gestation except for medical emergencies. We
evaluate whether that prohibition is, under Casey, an “undue
burden.” The woman who does not have a “medical
emergency” cannot obtain an abortion after 20 weeks from an
Arizona physician. The question for us is whether the current
state of constitutional law prohibits the states from imposing
that restriction. It does.
Though Casey was a plurality opinion leaving some room
for interpretation,10 a majority of the Supreme Court in
8
Roe v. Wade, 410 U.S. 113 (1973).
9
Casey, 505 U.S. at 860.
10
Casey, 505 U.S. 833.
ISAACSON V. HORNE 41
Gonzales spoke clearly, albeit partially in dicta,11 as to the
current state of the law. Here are several propositions of law
by which, under Casey and Gonzales, we are bound:
1. “[T]he government has a legitimate and substantial
interest in preserving and promoting fetal life”;12
2. “Before viability, the State’s interests are not strong
enough to support a prohibition of abortion or the imposition
of a substantial obstacle”;13
3. There is a constitutional “right of the woman to choose
to have an abortion before viability and to obtain it without
undue interference from the State”;14
4. “Casey rejected both Roe’s rigid trimester framework
and the interpretation of Roe that considered all previability
regulations of abortion unwarranted”;15
11
U.S. v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000)
(“We do not treat considered dicta from the Supreme Court lightly.
Rather, we accord it appropriate deference. . . . Supreme Court dicta have
a weight that is greater than ordinary judicial dicta as prophecy of what
that Court might hold; accordingly, we do not blandly shrug them off
because they were not a holding.”) (quotations omitted).
12
Gonzales, 550 U.S. at 145.
13
Id. (quotations omitted).
14
Id.
15
Id. at 146.
42 ISAACSON V. HORNE
5. “Before viability, a State may not prohibit any woman
from making the ultimate decision to terminate her
pregnancy”;16
6. An “undue burden,” prohibited by Casey even though
less than an absolute prohibition, exists if a “regulation’s
purpose or effect is to place a substantial obstacle in the path
of a woman seeking an abortion before the fetus attains
viability”;17
7. Gonzales accepts as appropriate government objectives
prohibiting inhumane procedures that “coarsen society,”
recognizing that a government may consider “effects on the
medical community,” and “may use its voice and its
regulatory authority to show its profound respect for the life
within the woman”;18
8. The “undue burden” test does not prohibit laws that
have a valid purpose but an “incidental effect of making
[abortion] more difficult or expensive to procure,”19 and the
woman seeking to abort even a previability fetus is not
constitutionally entitled to do so completely free of
interference from the state, but any state interference cannot
be “undue.”20
16
Id. (quotations omitted).
17
Id.
18
Id. at 157.
19
Id. at 158 (quotations omitted).
20
Id. at 145 (quotations omitted).
ISAACSON V. HORNE 43
Our circuit law is to similar effect, of course.21
Arizona has unquestionably put a “substantial obstacle”
in the path of a woman seeking to abort a previability fetus.
Unless she has a “medical emergency,” no one can perform
it on her. True, she might be able to go to another state for it,
but I am unaware of any case in which one state may deprive
someone of a constitutional right because the individual could
exercise it in another state. And aborting previability fetuses
is, under the current state of the law, a constitutional right.
True, the state has a legitimate interest in protecting the fetus
from pain. Although plaintiffs’ amici claim that a
previability fetus feels no pain, the state’s experts’ affidavits
claim that it does, and legislatures have “wide discretion to
pass legislation in areas where there is medical and scientific
uncertainty.”22 But protection of the fetus from pain, even the
pain of having a doctor stick scissors in the back of its head
and then having the doctor “open[] up the scissors [and stick
in] a high-powered suction tube into the opening, and suck[]
the baby’s brains out” was not enough in Gonzales to justify
a complete prohibition.23
As for Arizona’s claimed interest in the mother’s health,
people are free to do many things risky to their health, such
as surgery to improve their quality of life but unnecessary to
preserve life. There appears to be no authority for making an
21
See McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012); Planned
Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004).
22
Gonzales, 550 U.S. at 163.
23
Id. at 139.
44 ISAACSON V. HORNE
exception to this general liberty regarding one’s own health
for abortion.
I have alluded to administration of the death penalty to
convicts because in one respect it is analogous. Many people
have very substantial moral, philosophical, practical, and
religious objections to one or both. Of course the analogy is
limited, because convicts sentenced to death have committed
horrendous crimes, but fetuses have committed no crimes.
But the analogy applies to the extent that regardless of the
objections we may have, a lower court is bound to apply
Supreme Court authority, which allows executions and
requires states to permit abortions. And under the authority
by which we, and the state legislatures, are bound, the
Arizona prohibition is unconstitutional.