With Arizona case, Supreme Court postpones major abortion ruling


WASHINGTON — The Supreme Court’s refusal Monday to revive an Arizona law that largely banned abortions after 20 weeks put off for at least another year a clear constitutional ruling on whether conservative states may adopt new restrictions on women seeking to end their pregnancies.

The decision, marking the third time this term that justices have declined to take up an abortion case, suggested the closely split court is not anxious to jump into the divide between red states and blue states over abortion rights.

Arizona’s law was the court’s first opportunity to comment on the string of state laws that have passed since 2010 limiting abortions to a window less than the 24 weeks commonly accepted under Roe vs. Wade. The U.S. 9th Circuit Court of Appeals struck down the Arizona law as unconstitutional last year, and Monday’s action allowed that ruling to stand.


At least 13 other states have passed similar laws and most remain in effect because they are outside the jurisdiction of the 9th Circuit. However, legal appeals of those laws could bring the issue back to the Supreme Court later, especially if other appellate courts issue conflicting opinions on the 20-week restriction.

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Abortion foes saw Monday’s decision as a major setback. John Eastman, the Orange County attorney who appealed the matter to the high court, predicted it would be at least two to three years before another appellate court issued a conflicting decision.

“The court is just not ready yet,” said Eastman, a Chapman University law professor. “We’re obviously not going to have something this term. And that upsets me.”

Last fall, abortion foes were optimistic that the court’s conservative bloc would use this term to shift to the right on several issues, particularly abortion. They put their hopes on three cases, including Arizona’s, which they said provided an opportunity for justices to take up the controversial issue of “fetal pain.”

Rather than banning abortion outright, conservative groups insisted the state laws sought only to impose restrictions, either for the health of the mother or the child. Abortion rights groups called them veiled attempts to undermine Roe vs. Wade.

The court refused to hear all three of the state appeals. The two other cases came from Oklahoma. The court let stand a lower court ruling that voided a state law effectively banning one of two commonly prescribed abortion-inducing drugs used in the early stages of a pregnancy.

A second decision blocked a law that would have required an ultrasound test for women seeking an abortion. In their unsuccessful appeal, the lawyers representing Oklahoma noted that Ohio had adopted a similar ultrasound law, and a federal court allowed it to take effect.

Abortion opponents criticized the court for declining to examine the new wave of state abortion-restriction laws.

“We are very disappointed today,” said Charmaine Yoest, president of Americans United for Life. “The court urgently needs to address this issue. It’s been seven years since the justices heard an abortion case.”

In that 2007 case, the court by a 5-4 vote upheld the federal ban on late-term “partial-birth” abortions. The opinion helped trigger the current wave of state abortion restrictions.

As with many issues, Justice Anthony M. Kennedy is seen as the swing vote. He has upheld the right to abortion, but also signaled some support for greater regulation.

The court cannot avoid the abortion issue entirely. On Wednesday, they will hear a free-speech challenge to a Massachusetts law that sets a 35-foot buffer zone around the entrance to abortion clinics. Antiabortion activists who wish to counsel pregnant women against entering clinics say the law violates their 1st Amendment rights.

Defenders of abortion rights took little comfort from Monday’s action.

“I don’t take much from this,” said Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union. “Certainly, there are a number of cases percolating in the lower courts, and I would not be surprised if one of them gets there in the next year or two.”

Abortion rights groups are not eager to force the Supreme Court to rule on the issue, fearing justices might ultimately decide to accept new limits.

In Texas, for example, abortion rights advocates made a strategic decision not to challenge that state’s new 20-week limit on abortions, similar to the one in Arizona. That’s probably because they worry the U.S. 5th Circuit Court of Appeals in New Orleans would uphold it.

Instead, they sued to stop another provision of the law that required doctors performing abortions to have admitting privileges at nearby hospitals. Women’s health advocates said the provision effectively forced a third of that state’s clinics to stop offering the procedure. But they lost in the 5th Circuit and again by a 5-4 vote in the Supreme Court, which allowed the law to take effect.

Dalven noted that the U.S. 7th Circuit Court of Appeals in Chicago had blocked a Wisconsin clinic law that is similar to the Texas measure. If Wisconsin’s state lawyers appeal to the high court, the justices may feel obliged to rule because of the split in the law.

As a general rule, the justices vote to hear a case if two federal appeals courts have differed on the constitutionality of a similar law.

States with a 20-week abortion restriction similar to Arizona’s are Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, North Carolina, North Dakota and Texas.