WASHINGTON, D.C., January 31, 2012, ( – Barack Obama’s new appointee for the Ninth Circuit Court of Appeals “will be one of the strongest pro-abortion justices on the ninth circuit,” according to Clarke Forsythe, senior counsel at Americans United for Life (AUL).

Senate hearings began Thursday for Andrew D. Hurwitz of Arizona, whom the president nominated for a seat on the controversial court.

Hurwitz has boasted of playing a role in laying the groundwork for Roe v. Wade.


In a 2002 article for the New York Law School Law Review, Hurwitz wrote of the “remarkable” career of Judge Jon O. Newman, whose rulings in Abele v. Markle I and Abele v. Markle II exercised “crucial influence” over Roe. The Abele decisions struck down two Connecticut laws banning abortion except to save the life of the mother.

Hurwitz clerked for Newman in 1972 and boasted that while interviewing for a subsequent clerkship on the state Supreme Court, Supreme Court Justice Potter Stewart had referred (“jokingly”) to Hurwitz as “the clerk who wrote the Newman opinion.” Hurwitz speculates that the remark was likely “based on Judge Newman’s generous letter of recommendation, a medium in which some exaggeration is expected.”

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Hurwitz’s law review article, “Jon O. Newman and the Abortion Decisions: A Remarkable First Year,” describes Newman’s role as the swing vote in the two cases, which were decided by a 2-1 margin. In the decisions Newman acknowledged that if an unborn child had personhood rights under the Fourteenth Amendment, “it is difficult to imagine how a statute allowing abortion could be constitutional.” However, he reasoned that since babies are not included in the census, they do not enjoy Fourteenth Amendment protections until birth. The same argument was made in Roe v. Wade.

Newman’s decision made “viability” the first point for the state to regulate abortions, a measure taken up in Roe.

This “establishes the U.S. as an outlier among all the world’s nations,” Forsythe told LifeSiteNews. “Because of that opinion, and because of Roe v. Wade, the U.S. is one of only three nations that allows abortion after viability.”

Hurwitz was named to his current post in 2003 by then-Governor Janet Napolitano, who is now the secretary of the Department of Homeland Security. In the 1980s, he served as chief of staff for former Arizona governor Bruce Babbit.

Thirty years after Abele, Hurwitz still refers to Roe as a “landmark” case.

Forsythe said the Abele decision is doubly lamentable because “abortion mortality rises precipitously at about 20 weeks, which is a few weeks before viability.”

“It is the reason for the Kermit Gosnell scandals in Philadelphia and live birth abortions,” he stated.

“That’s a tragic legacy, which Hurwitz expresses great pride in,” Forsythe said.

The Ninth Circuit Court of Appeals, which covers Arizona and the West Coast, is one of the most overturned courts in the nation. Its liberal rulings have led some to brand it “the Ninth Circus.”