Ted Simons: The ninth circuit Court of Appeals yesterday struck down an Arizona law banning abortions after 20 weeks. Joining us is Arizona State University law professor Paul bender. Always a pleasure. Good to have you here. What did the ninth circuit look at, what did they rule?
Paul Bender: They ruled that Alabama -- they have a law too. Arizona's law which says -- which would ban abortions after 20 weeks of fetal life, that is – 20 weeks after conception was unconstitutional, violated Roe versus Wade. The reason is Roe versus Wade held a woman has a right to an abortion up until fetal viability. If you pass a law which fixes a time that is pre-viability, and says you can have an abortion after that time, the ninth circuit says that's unconstitutional because the Supreme Court has said that you have a right to an abortion up until the time of fetal viability. The Arizona law clearly cuts that right off before fetal viability.
Ted Simons: Correct me if I'm wrong, the Arizona cite seems to suggest states are aloud reasonable restrictions and limits to abortions and the 20-week limit was reasonable.
Paul Bender: There are a lot of reasonable regulations but they are not allowed to prohibit abortions until fetal viability. That's Roe and Wade clear as can be. It says women have a right to have an abortion until the fetus is viable. You can say it may be in a hospital. You can tell the woman this, that or the other thing about the abortion. People have tried waiting periods. A lot of that is unconstitutional. But this is not a regulation. It's a prohibition. Under Arizona law you can't not get an abortion if the fetus is more than 20 weeks and you have a constitutional right to get an abortion up until fetal viability. It's that period between weeks and viability that it's unconstitutional to prohibit it.
Ted Simons: This ruling reversed a judge which upheld the law. Talk about that decision and why the ninth circuit unanimously said no go.
Paul Bender: The ninth circuit said it because it's clearly unconstitutional. A number of states have passed laws that time is different from one to another but if you set a time before viability and prohibit abortion after that time, it's clearly unconstitutional under Roe and Wade. There's a lot of arguments, some sensible, as to why that's a bad rule, but that happens to be the law now, and the ninth circuit has to follow it. All the courts do unless the Supreme Court changes it. What the District Court said was, well, the fetus may feel pain at 20 weeks. Well, that may be true, but Roe versus Wade isn't based on whether the fetus feels pain, it's based on viability. He said a couple of other things, well, you could have the abortion before weeks so we're not stopping them from having an abortion, but that gets -- that's inconsistent with what ROE said, which is you have a right to an abortion until fetal viability. If the state says you can't have an abortion before viability that's got to be unconstitutional under Roe.
Ted Simons: The state in arguing for this law were thinking, some were, this is not a surprise out of the ninth circuit, it will go further, an there's an idea that you mentioned viability. It's a key word. Viability standard in and of itself needs to be reexamined by the Supreme Court.
Paul Bender: There's a lot of reasons to support that. The viability standard is a very unusual one because it turns upon a guess as to a medical physical condition. Viability means the fetus is capable of living outside the womb. So how do you know whether a fetus is viable or not? It's a guess, a medical guess. It's about something that's fairly subjective. What do you mean by capable of living? What are the chances that it would survive? 90% chance? The court did go out of its way to say capable of living alone or in an incubator. Still nobody knows exactly when a particular fetus is capable of that. It changes because medical science changes. The time of viability has moved earlier by a couple of weeks.
Ted Simons: I read during Roe versus Wade it was weeks. Now it's down to 23, 24.
Paul Bender: Some think it's 24. Everyone agrees that's one of the problems with the state's position in this case was that the ninth circuit says I assume it's true that everybody agreed that 20 weeks was not -- a fetus at weeks is not viable. Once you agree a fetus is not viable the woman has a right to abort that fetus. There is reason I think to rethink the whole thing in terms of what you're trying to do here is trying to protect the woman's right and you're trying to protect fetal life as much as you can. What you really maybe want to do is work out some system where women have a fair chance to have an abortion and that may turn on the reason they are having an abortion because women do it for different reasons. It may turn on when they find out about things. If you build flexibility to the system and have a rule that let's women have an abortion, give them a fair chance to have them so they don't have an unwanted child, then says you've had your fair chance, that might be a workable standard. But that's not what Roe versus Wade does.
Ted Simons: With that in mine does this case likely try to make its way to the Supreme Court?
Paul Bender: I would imagine they are going to try to get the Supreme Court to review this. As I said before there are a number of states that have passed this statute. The Supreme Court is not going to take all those cases, so it's a good chance it would take one of them.
Ted Simons: If it takes this case and the state really pushes that let's look again at a viability standard, is this likely to do it and if so, what would they rule?
Paul Bender: This is not a good case to do that.
Ted Simons: How come?
Paul Bender: It's a fixed week standard. Everybody agrees that the fetus is not viable at weeks. It’s direct confrontation with Roe versus Wade. If the state tried to do something more flexible, had rules about how you tell when a fetus is viable so it would help decide whether there's viability, that I think would have a much better chance of getting through the Supreme Court. In order to uphold the statute the Supreme Court has to overrule Roe versus Wade and come up with a completely new definition of when a woman has a right to an abortion.
Ted Simons: Last question. Is this court the makeup of the court as it sits, is this a court, A, to consider, B, to perhaps make serious changes?
Paul Bender: I think it's unlikely. There are probably four people on the court who would be willing to overrule it, dramatically change what it says, but justice Kennedy joined in an opinion some years ago in which he said he was not willing to do that, and I think he and four people presently on the court if he's not willing to there are four on the court not willing to do it, so I would think that the chances are that Roe and Wade would not be changed. That means the court would not take a case like this because people even if you want to overrule Roe versus Wade you don't want to take a case you know you'll lose. They may be waiting for a statute that's more flexible.
Ted Simons: Paul, always good to see you. We appreciate it.
Paul Bender: Nice to be here, Ted.