## Facts

- Arizona enacted A.R.S. § 36-2159 (Section 7 of H.B. 2036), prohibiting abortions starting at 20 weeks gestational age (measured from the last menstrual period), except in a narrowly defined “medical emergency.”
- “Medical emergency” was limited to abortions necessary to avert the woman’s death or to avoid serious risk of substantial and irreversible impairment of a major bodily function.
- The law operated in addition to Arizona’s separate post-viability abortion prohibition, extending an outright prohibition earlier in pregnancy.
- The parties agreed that no fetus is viable at 20 weeks gestational age; evidence in the record placed typical viability at approximately 23–24 weeks.
- Arizona physicians who provided abortion care brought a pre-enforcement facial challenge on their own behalf and on behalf of patients, seeking declaratory and injunctive relief under the Fourteenth Amendment.
- The district court denied a preliminary injunction and dismissed, treating the measure as a permissible pre-viability regulation because of the medical-emergency exception.
- The court of appeals enjoined enforcement pending appeal and then reviewed the statute’s constitutionality under governing Supreme Court abortion precedent.

## Issues

1. Whether physician plaintiffs had standing to assert patients’ constitutional rights and bring a pre-enforcement facial challenge to the statute.
2. Whether a statute prohibiting abortions at 20 weeks gestational age, with only a narrow medical-emergency exception, is unconstitutional because it bars some abortions before fetal viability.

## Decision

- The Ninth Circuit reversed and remanded.
- The court held the physicians had third-party standing to assert their patients’ due process rights in a facial challenge to an abortion restriction.
- The court held Arizona’s 20-week gestational-age prohibition unconstitutional as applied to pre-viability abortions.
- The court concluded the statute functioned as a ban in the ordinary case, not a regulation, because it forbade abortions after 20 weeks except in extraordinary medical-emergency circumstances.
- The court rejected Arizona’s reliance on asserted interests in fetal pain and increased maternal health risks as a basis to move the constitutional line for prohibition earlier than viability.

## Legal Principles

- Physicians may assert patients’ constitutional rights in facial challenges to abortion laws, including in pre-enforcement litigation.
- Under then-controlling Supreme Court precedent, a state may not prohibit a woman from choosing to terminate a pregnancy at any point before fetal viability.
- The constitutionally relevant boundary for outright proscription is viability, not a fixed gestational age selected by the legislature.
- A law that forbids abortions in the usual case prior to viability, permitting them only under a narrow medical-emergency exception, is a prohibition rather than a regulation and is unconstitutional under the viability rule.
- State interests in potential life and maternal health may support pre-viability regulation but do not justify categorical bans before viability.

## Conclusion

The Ninth Circuit held that Arizona’s 20-week gestational-age abortion restriction was an unconstitutional pre-viability ban, reaffirming that, under controlling Supreme Court doctrine at the time, states could regulate but not prohibit abortions prior to fetal viability and that physicians could sue on behalf of their patients to challenge such laws.


Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013)