AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
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)(l). The challenged provision in Section 7 of H.B.2036 (“Section 7” or “the twenty-week law”)
Since Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (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 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*1218 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 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 “[pjrohibit 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 abortion at that gestational age.” H.B. 2036, sec. 9(B)(1).
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 injunc-tive relief against enforcement of Section 7 on behalf of themselves and of their patients wishing to terminate pre-viability
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
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 La-Wall expressed support for the preliminary injunction, Defendant Montgomery sought her dismissal as a party defendant.
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 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.
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 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.
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.
“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, 101 S.Ct. 1830, 68 L.Ed.2d 175 (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 ease 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.
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 omit
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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 for him a threat of criminal prosecution.” Diamond v. Charles, 476 U.S. 54, 65, 106 S.Ct. 1697, 90 L.Ed.2d 48 (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, 96 S.Ct. 2868, 49 L.Ed.2d 826 (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, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Planned Parenthood v. Casey, 505 U.S. 833, 845, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 440 n. 30, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), overruled on other grounds by Casey, 505 U.S. at 882, 112 S.Ct. 2791 (plurality opinion); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 62 & n. 2, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976).
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
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, 97 S.Ct. 2376, 53 L.Ed.2d 484 (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, 93 S.Ct. 705.
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, 93 S.Ct. 705. 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, 93 S.Ct. 705.
Casey jettisoned this trimester framework and the strict scrutiny standard applied in Roe, see Casey, 505 U.S. at 871-73, 112 S.Ct. 2791 (plurality opinion), holding that state interests in women’s health and fetal life are present and “substantial” from the outset of pregnancy, id. at 846, 112 S.Ct. 2791 (joint opinion), 876, 112 S.Ct. 2791 (plurality opinion). But Casey reaffirmed — and Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480 (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, 112 S.Ct. 2791; Gonzales, 550 U.S. at 145, 127 S.Ct. 1610. 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
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, 93 S.Ct. 705. 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, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). City of Akron v. Akron Center for 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, 103 S.Ct. 2481. 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, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), it did not alter the principle that viability — not gestational age — remains the “critical point,” id. at 529, 109 S.Ct. 3040 (O’Connor, J., concurring).
Although the plurality opinion in Casey abandoned Roe’s trimester framework, 505 U.S. at 873, 112 S.Ct. 2791, 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, 112 S.Ct. 2791 (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, 112 S.Ct. 2791 (plurality opinion).
Echoing the joint opinion in Casey, Sten-berg took as the starting point of its analysis the “established prineiple[ ]” that, “before ‘viability ... the woman has a right to choose to terminate her pregnancy.’ ” 530 U.S. at 921, 120 S.Ct. 2597 (quoting Casey, 505 U.S. at 870, 112 S.Ct. 2791 (plurality opinion)) (emphasis added).
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,
*1224 [bjefore 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, 127 S.Ct. 1610 (emphasis added) (citation omitted) (quoting Casey, 505 U.S. at 878-79, 112 S.Ct. 2791 (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, 127 S.Ct. 1610.
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).
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 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, 112 S.Ct. 2791. 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, 103 S.Ct. 2481 (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, 112 S.Ct. 2791. Evolving medical
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