No. 12-16670
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
__________________________________________
Paul A. Issacson, M.D.; William Clewell, M.D.; Hugh Miller, M.D.,
Plaintiffs-Appellants
v.
Tom Horne, Attorney General of Arizona, in his official capacity; William
Montgomery, County Attorney for Maricopa County, in his official capacity;
Barbara LaWall, County Attorney for Pima County, in her official capacity;
Arizona Medical Board; and Lisa Wynn, Executive Director of the Arizona
Medical Board, in her official capacity,
Defendants-Appellees.
__________________________________________
APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR ARIZONA
Civil Action No. 2:12-cv-01501-JAT-PHX
The Honorable James A. Teilborg, Judge
__________________________________________
BRIEF OFAMICUS CURIAE OF DOCTORS ON FETAL PAIN
IN SUPPORT OF STATE APPELLEES AND AFFIRMANCE
__________________________________________
Teresa Stanton Collett
Professor of Law
University of St. Thomas
School of Law*
1000 LaSalle Avenue
Minneapolis, MN 55403-2015
(651) 528-7007

Steven H. Aden
M. Casey Mattox
ALLIANCE DEFENDING FREEDOM
801 G Street NW, Suite 509
Washington, D.C. 20001
(202) 393-8690

*Affiliation for identification purposes
only
Attorneys for Amicus Curiae

 CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 Amicus Curiae Doctors on Fetal Pain is an
unincorporated association of individuals that has no parent corporation and issues
no stock.
Dated: October 10, 2012
/s/ Teresa S. Collett
Teresa S. Collett
Counsel for Amicus Curiae

i

 TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..................................................... i
TABLE OF AUTHORITIES .................................................................................. i
INTEREST OF AMICUS CURIAE ........................................................................1
FED. R. APP. P. 29(c)(5) CERTIFICATION........................................................1
INTRODUCTION....................................................................................................2
FACTUAL SUMMARY ..........................................................................................3
ARGUMENT ............................................................................................................3
I.

ARIZONA HAS THE CONSTITUTIONAL AUTHORITY TO LEGISLATE IN
AN EFFORT TO LIMIT OR PREVENT THE INFLICTION OF PAIN. .....................3

II.

PRIOR JUDICIAL CONSIDERATION OF FETAL PAIN CONFIRMS ITS LEGAL
RELEVANCE………………………………………………………………..5

III.

THE VIABILITY RULE DOES NOT BAR CONSIDERATION OF FETAL PAIN IN
REGULATION OF ABORTION……………………………………………….6

IV.

FETAL PAIN IS AN INDEPENDENT STATE INTEREST……………………….9

V.

ARIZONA’S LEGISLATIVE FINDINGS SHOULD BE GIVEN WEIGHT IN
REVIEWING THE DISTRICT COURT’S RULING BELOW……………………12

CONCLUSION…………………………………………………………………13
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ................................14
CERTIFICATE OF SERVICE ............................................................................15

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 TABLE OF AUTHORITIES
CASES
Colautti v. Franklin, 439 U.S. 379 (1979)………………………………………….8
DeShaney v. Winnebago County Dept. of Social Servs.,
489 U.S. 189 (1989) …...................................................................................3
Gonzales v. Carhart,
550 U.S. 124 (2007)......………………………………………………....9, 10
Nat’l Abortion Federation v. Ashcroft, 3
30 F.Supp. 2d 436 (S.D.N.Y. 2004)…………………………………………5
Piedmonte v. United States,
367 U.S. 556 (1961).........................................................................................3
Planned Parenthood Federation v. Ashcroft,
320 F.Supp.2d 957 (N.D.Cal. 2004)………………………………………..5
Planned Parenthood of Central Missouri v. Danforth,
428 U.S. 52 (1976)…………………………………………………………..8
Planned Parenthood v. Rounds, 530 F.3d 724 (8th Cir. 2006)………………..........6
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992)...…………………………………………………passim
Roe v. Wade,
410 U.S. 113 (1973)………………………………………………………6, 8
Stenberg v. Carhart,
530 U.S. 914 (2000)..……………………………………………………9, 12
Thornburgh v. Amer. Coll. of Obst. & Gyn.,
476 U.S. 747 (1986)…..……………………………………………………11
United States v. Stevens,
__ U.S. __, 130 S.Ct. 1577 (2010) …………………………………………4
i

 Webster v. Reproductive Health Services,
492 U.S. 490 (1989)…………………………………………………………7
STATUTES
ARIZ. REV. STAT. § 36-2159………………………………………………………..2
18 U.S.C. § 2340…………………………………………………………………...4
TREATIES
UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment………………………………………4

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 INTEREST OF AMICUS CURIAE
Amicus Curiae Doctors on Fetal Pain is an unincorporated multi-specialty
association of physicians and medical researchers who support greater legal
protection for the unborn child based on clinical experience and anatomical,
behavioral, and physiological research revealing that an unborn child experiences
pain prior to twenty-three or twenty-four weeks gestation, the earliest point in a
pregnancy at which human fetal “viability” is recognized by the United States
Supreme Court. Its members have testified before Congress and state legislatures,
including the Arizona legislature, concerning their research on fetal pain. It also
educates, maintaining a website at http://www.doctorsonfetalpain.com/ that
includes some of this research.
This Brief is being filed with consent of the parties.
FED. R. APP. P. 29(C)(5) CERTIFICATION
No party or party’s counsel participated in, or provided financial support for,
the preparation and filing of this brief, nor has any entity other than Amicus and its
counsel participated in or provided financial support for the brief.

1

 INTRODUCTION
The district court below ruled that 2012 ARIZ. LEGIS. SERV. 250 (H.B. 2036)
(West) (to be codified as ARIZ. REV. STAT. § 36-2159 (“H.B. 2036”) is a
constitutionally permissible regulation of abortion. This ruling was based in part
on a finding by the Arizona legislature that “[t[here is substantial and welldocumented medical evidence that an unborn child by at least twenty weeks of
gestation has the capacity to feel pain during an abortion.” H.B. 2036 § 9(7).
In reviewing this legislative determination, the district court opined:
In choosing to put a limit on abortions past 20 weeks
gestational age, the Arizona Legislature cited to the substantial and
well-documented evidence that an unborn child has the capacity to
feel pain during an abortion by at least twenty weeks gestational age.
Defendants presented uncontradicted and credible evidence to the
Court that supports this determination. Namely, the Court finds that,
by 7 weeks gestational age, pain sensors develop in the face of the
unborn child and, by 20 weeks, sensory receptors develop all over the
child's body and the children have a full complement of pain
receptors. Doc. 25-1, Exhibit 1 at ¶ 4; Doc. 25-1, Exhibit 2 at ¶ 20.
That the unborn child can feel pain is further supported by the
fact that when provoked by painful stimuli, such as a needle, the child
reacts, as measured by increases in the child's stress hormones, heart
rate, and blood pressure. Doc. 25-1, Exhibit 1 at ¶ 5. When the child is
given anesthesia, these responses decrease, which is why doctors
often give both the mother and the fetus anesthesia separately in the
case of fetal surgery. Id.; Doc. 25-1, Exhibit 2 at ¶¶ 27, 29-30.
Nowhere in the Record is it suggested that a fetus is given anesthesia
before being subjected to a D&E or an induction abortion.
Given the nature of D&Es and induction abortions, as described
above, and the finding that the unborn child has developed pain
sensors all over its body by 20 weeks gestational age, this Court
2

 concludes that the State has shown a legitimate interest in limiting
abortions past 20 weeks gestational age.
This brief is offered to assist this Court in understanding the evidence supporting
the existence of fetal pain and the controversy over its relevance to the regulation
of abortions at or after 20 weeks gestation. Hormonal, behavioral, and physiologic
evidence supports the legislature’s conclusion that a fetus at twenty weeks
gestation feels pain. Amicus will argue that elimination or reduction of activities
that provoke pain is a long-recognized State interest that supports the judgment of
the district court.
FACTUAL SUMMARY
Amicus relies on the factual recitation presented in State Appellees’ brief.
ARGUMENT
I.

ARIZONA HAS THE CONSTITUTIONAL AUTHORITY TO LEGISLATE TO LIMIT
OR PREVENT THE INFLICTION OF PAIN.
One of the most basic and widely accepted principles of political governance

is that that the State is justified in promulgating laws to protect individuals from
harm by others. “The Government of course has an obligation to protect its citizens
from harm.” Piedmonte v. United States, 367 U.S. 556, 559 n. 2 (1961).

The

exercise of this power is up to the prudential judgment of state legislatures
however, and not a constant constitutional imperative. See DeShaney v. Winnebago
County Dept. of Social Servs., 489 U.S. 189, 195 (1989) (rejecting claim against

3

 local child-protection officials who, after notice of possible abuse, failed to protect
a child from beatings by his father that left the child severely brain damaged.
The power of the State to legislate and protect against a variety of harms,
including the harm of being made to suffer physical pain, has been recognized in
both domestic and international law. E.g. 18 U.S.C. § 2340 (criminal prohibition of
torture which is defined as “an act committed by a person acting under the color of
law specifically intended to inflict severe physical or mental pain or suffering
(other than pain or suffering incidental to lawful sanctions) upon another person
within his custody or physical control”); and UN General Assembly, Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85,
available at: http://www.unhcr.org/refworld/docid/3ae6b3a94.html [accessed 10
October 2012]. This power of protection is so broad that it encompasses all living
creatures,1 as well as developing fetal human life. See Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 873 (1992) (recognizing
State’s potentially paramount interest in protecting fetal life without limitation to
Roe’s trimester categories).
1

Since the early days of the American Republic animal cruelty has been outlawed,
and criminal laws found in all of the fifty states continue to punish the behavior.
United States v. Stevens, __ U.S. __, 130 S.Ct. 1577, 1598 (2010) (Alito, J.,
dissenting) (“It is undisputed that the conduct [acts of animal cruelty] depicted in
crush videos may constitutionally be prohibited. All 50 States and the District of
Columbia have enacted statutes prohibiting animal cruelty.”)
4

 Therefore the judiciary’s refusal to afford full legal protection to unborn human
beings does not foreclose the exercise of legislative power directed toward the
elimination of pain.
II.

PRIOR JUDICIAL CONSIDERATION
RELEVANCE.

OF

FETAL PAIN CONFIRMS

ITS

LEGAL

The existence of fetal pain has been the subject of prior judicial review,
particularly in cases involving the constitutionality the federal partial-birth abortion
bans. Judge Richard C. Casey, a federal district court judge sitting in the Southern
District of New York, called the D & X procedure “gruesome, brutal, barbaric, and
uncivilized.” Nat’l Abortion Federation v. Ashcroft, 330 F.Supp. 2d 436, 479
(S.D.N.Y. 2004). He found that abortion procedures “subject fetuses to severe
pain.” Id.
Judge Phyllis J. Hamilton, sitting in the Northern District of California,
arrived at a different conclusion. She wrote that “the issue of whether fetuses feel
pain is unsettled in the scientific community.” Planned Parenthood Federation v.
Ashcroft, 320 F.Supp.2d 957, 1001 (N.D.Cal. 2004). While these opinions arrive
at divergent conclusions regarding the existence and extent of fetal pain during
abortion, both opinions recognize that the existence of fetal pain is legally relevant
to the regulation of abortion.
In the present litigation, as the district court notes, Defendants presented
uncontradicted and credible evidence to the court that a fetus is capable of
5

 experiencing pain at and after twenty weeks gestation. It is beyond imagination
that any plausible interpretation of the U.S. Constitution bars legislative action to
limit or eliminate that pain. The Court should affirm the decision of the district
court that Arizona has a constitutionally recognizable interest in limiting the
infliction of pain on the unborn.
III.

THE VIABILITY RULE DOES NOT BAR CONSIDERATION OF FETAL PAIN IN
REGULATION OF ABORTION.
In Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court

declared that the Constitution contained an implicit right to obtain an abortion.
The Court characterized the right as the logical extension of another implied right - the right to use contraception -- which was grounded in the implied right to
privacy. In so holding, however, the Court recognized that the abortion decision
was unique.
As we have intimated above, it is reasonable and appropriate for a
State to decide that at some point in time another interest, that of
health of the mother or that of potential human life, becomes
significantly involved. The woman’s privacy is no longer sole and any
right of privacy she possesses must be measured accordingly.
Roe v. Wade, 410 U.S. at 152. Unlike contraception, abortion involves both the
mother and “a whole, separate, unique, living human being” that she carries. See
Planned Parenthood v. Rounds, 530 F.3d 724, 736 (8th Cir. 2006) (en banc)
(upholding a South Dakota law requiring that women be informed that abortion

6

 ends the “life of a whole, separate, unique, living human being,” and finding that
opponents of the definition provided “no evidence to the contrary”).
Roe established what was to become for a period of time a “rigid trimester
analysis,” permitting virtually no regulation of abortion during the first trimester,
with regulations directed only at preserving maternal health permitted in the
second trimester. Webster v. Reproductive Health Services, 492 U.S. 490, 517
(1989) (plurality opinion). Only in the third trimester or post-viability could the
State protect fetal life by prohibiting abortions that were not necessary to preserve
the life or the health of the mother. Roe, 410 U.S. at 162-165.
This trimester approach to abortion legislation was criticized by four
members of the Court in Webster v. Reproductive Health Services.
We think that the doubt cast upon the Missouri statute by these cases
is not so much a flaw in the statute as it is a reflection of the fact that
the rigid trimester analysis of the course of a pregnancy enunciated in
Roe has resulted in subsequent cases like Colautti and Akron making
constitutional law in this area a virtual Procrustean bed.
492 U.S. at 517. The plurality opinion recognized that the State’s interest in
protecting fetal life existed throughout the pregnancy. “[W]e do not see why the
State’s interest in protecting potential human life should come into existence only
at the point of viability, and that there should therefore be a rigid line allowing
state regulation after viability but prohibiting it before viability.” Id.

7

 Ultimately the trimester approach was rejected by the Court in Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), noting
that the trimester framework “misconceives the nature of the pregnant woman's
interest; and in practice it undervalues the State's interest in potential life, as
recognized in Roe.” Id. at 873. The Justices, however, retained fetal viability as a
measure of constitutional significance. Id. at 879.
To date, most cases regarding the ability of states to prohibit abortions after
viability have focused on the method of determining viability. 2 The existence of
this rule, however, does not foreclose the establishment of a separate and
independent State interest in protecting the unborn from experiencing pain or
preserving the lives of unborn children at the point when they are capable of
feeling pain.
IV.

FETAL PAIN IS AN INDEPENDENT STATE INTEREST.
The Supreme Court has never been asked whether the State’s interest in

protecting unborn children who have the capacity to feel pain is sufficiently
compelling to support a limited prohibition on abortion. The case before this Court
presents the question of whether the capacity to feel pain, independent of fetal
2

See e.g. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)
(upholding a Missouri law permitting a case-by-case determination of viability);
and Colautti v. Franklin, 439 U.S. 379 (1979) (viability is reached when, in the
judgment of the attending physician on the particular facts of the case before him,
there is a reasonable likelihood of the fetus’ sustained survival outside the womb,
with or without artificial support).
8

 viability, is sufficient to sustain a limited prohibition on abortion.

While

Appellants argue vigorously that the pain capacity of the unborn should be legally
irrelevant, there are several indications by various members of the Supreme Court
that suggest the limited protection afforded to pain-capable unborn children in AZ
HB 2036 may be constitutional.
Just as the issue of abortion deeply divides the American people, abortion
cases divide the Supreme Court, with many of the most significant rulings being
plurality opinions. Among the most prominent examples are the plurality opinions
in Webster v. Reproductive Health Services, 492 U.S. 490 (1989) and Planned
Parenthood v. Casey, 505 U.S. 833 (1992). Recent

abortion

cases

such

as

Planned Parenthood v. Casey and Gonzales v. Carhart, 550 U.S. 124 (2007),
however, suggest a growing willingness of the Court to recognize and weigh
multiple state interests in assessing the constitutionality of an abortion regulation,
just as the district court below did.
In Stenberg v. Carhart, 530 U.S. 914 (2000), Justice Kennedy emphasized
that Casey held it was “inappropriate for the Judicial Branch to provide an
exhaustive list of State interests implicated by abortion” and that “Casey is
premised on the states having an important constitutional role in defining their
interests in the abortion debate.” 550 U.S. at 877. Justice Kennedy described the
State’s interest in the protection of fetal life as substantial at all points. “Casey

9

 struck a balance that was central to its holding, and the Court applies Casey's
standard here. A central premise of Casey’s joint opinion…[is] that the
government has a legitimate, substantial interest in preserving and promoting fetal
life…” 550 U.S. at 126.
In Gonzales v. Carhart, the Court upheld the federal Partial Birth Abortion
Ban Act which made no distinction based on viability. “The Act does apply both
previability and postviability because, by common understanding and scientific
terminology, a fetus is a living organism while within the womb, whether or not it
is viable outside the womb.” 550 U.S. at 147. Justice Kennedy, author of the
majority opinion, emphasized the State’s interest in protecting the fetus. “Casey
struck a balance that was central to its holding, and the Court applies Casey’s
standard here. A central premise of Casey's joint opinion…[is] that the government
has a legitimate, substantial interest in preserving and promoting fetal life…” 550
U.S. at 126.
Recognition of a compelling State interest in the protection of pain-capable
unborn children does not require the Court to reject a woman’s liberty interest in
obtaining an abortion or the balancing framework of Casey —it only asks the
Court to recognize the legislature’s ability to weigh and rely upon new scientific

10

 evidence supporting a strong state interest in regulating abortions at twenty weeks
gestation. 3
Even former U.S. Supreme Court Justice Stevens, who during his tenure on
the Court repeatedly voted to strike down abortion regulations, listed the
“organism’s capacity to feel pain” as a ground on the basis of which “the State’s
interest

in

the

protection

of

an

embryo

increases

progressively and

dramatically….” 4 He noted that “[t]he development of a fetus -and pregnancy
itself- are not static conditions, and the assertion that the government’s interest is
static simply ignores this reality.” 5
AZ HB 2036 is innovative only in so far as it relies upon scientific evidence
establishing the unborn child’s capacity to feel pain at twenty weeks gestation, and
concludes that the acquisition of this capacity makes that child sufficiently like the
rest of us to mark a tipping point – a tipping point at which it becomes reasonable
for Arizona to restrict abortion.

3

The Centers for Disease Control reports that in 2008, the latest national data
available, 1.3% of abortions were obtained at 21 weeks or later. CDC, Abortion
Surveillance – United States 2007 (2008) (available at http://www.cdc.gov/
mmwr/preview/mmwrhtml/ss6015a1.htm?s_cid=ss6015a1_w).
4
Thornburgh v. Amer. Coll. of Obst. & Gyn., 476 U.S. 747, at 778 (1986)
(Stevens, J., concurring).
5
Id. at 778-79 (1986).
11

 V.

ARIZONA’S LEGISLATIVE FINDINGS SHOULD BE GIVEN WEIGHT
REVIEWING THE DISTRICT COURT’S RULING BELOW.

IN

This evidence is incorporated into findings that support the legislative
distinction between abortions when the fetus can feel pain and when he or she does
not. As Justice Kennedy observed in Stenberg v. Carhart,
The issue is not whether members of the judiciary can see a difference
between the two procedures. It is whether Nebraska can. The Court’s
refusal to recognize Nebraska’s right to declare a moral difference
between the procedures is a dispiriting disclosure of the illogic and
illegitimacy of the Court's approach to the entire case.
530 U.S 914, 962 (2000) (Kennedy, J. dissenting).
The findings contained in AZ H.B. 2036 resolve the questions of whether
unborn children feel pain based on a substantial body of scientific and medical
evidence, similar to the body of evidence that resolved the question of whether
partial-birth abortion was ever necessary to preserve the health of a woman. The
fact that the existence of fetal pain is disputed is not sufficient to preclude action
by this legislature.

“The Court has given state and federal legislatures wide

discretion to pass legislation in areas where there is medical and scientific
uncertainty.” 550 U.S. 163 (2007). “Medical uncertainty does not foreclose the
exercise of legislative power in the abortion context any more than it does in other
contexts.” Id.

12

 AZ H.B. 2036 modestly expands upon the State’s interests in protection of
fetal life. This is permissible and in accord with the Constitution. Gonzales v.
Carhart, 550 U.S. at 124 (2007).
CONCLUSION
Certainly, the issue of at what point the unborn experience pain is an
important one that should inform best medical practice. It is of concern to the
women who obtain abortions, the providers who serve them, and the public who
demand that we not be indifferent to those capable of suffering. The Arizona law
reflects the political judgment that abortion should be limited at the point when the
unborn experience pain. They accepted and relied upon a substantial body of
scientific and medical evidence when crafting the regulation at stake in this case.
It restricts abortion only at or after twenty weeks gestation, and providing access
when the mother’s life or physical health is at stake. Abortion remains freely
available to women during almost the full four months at the beginning of their
pregnancies.
The judgment of the district court should be affirmed.
Respectfully submitted this the 10th day of October, 2012.
By: s/ Teresa S. Collett
Teresa S. Collett
Attorney for Amicus Curiae

13

 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
This brief complies with the type-volume limitation of FED. R. APP. P.
32(a)(7)(B) because this brief contains 2,645 words, excluding parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of FED. R. APP. P.
32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Word 2007 in
14-point Times New Roman.

Dated: October 10, 2012
s/ Teresa S. Collett
Teresa S. Collett
Attorney for Amicus Curiae

14

 CERTIFICATE OF SERVICE
I hereby certify that on October 10, 2012, I electronically filed the foregoing
with the Clerk of the Court for the United Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system:
United States Court of Appeals
Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.

s/ Teresa S. Collett
Teresa S. Collett
Attorney for Amicus Curiae

15