It has been 44 years since the Supreme Court pronounced in Roe v. Wade that women have a constitutional right to abortion and six months since the court reaffirmed that right in Whole Women’s Health v. Hellerstedt, a case that struck down surgical center and hospital admitting-privilege requirements for abortion providers. Current abortion jurisprudence requires balancing competing interests and uses fetal viability as the point at which the scales shift from honoring the decision of a woman seeking an abortion to those of a state seeking to restrict abortions. States are prohibited from placing an “undue burden” on pre-viability abortions, but may prohibit post-viability abortions as long as exceptions are made to protect the life and health of pregnant women.
This test is unlikely to change in the near future, even when a pro-life, anti-abortion ninth justice is seated on the Court, as all five justices who upheld it in Whole Women’s Health remain on the bench. States seeking to limit abortions must carefully craft legislation to avoid certain defeat in the courts. Government action that is found to have violated clearly established constitutional rights can result in monetary damages for plaintiffs and attorney fee awards for their lawyers.
Gov. John R. Kasich of Ohio, for example, recently vetoed an undoubtedly unconstitutional bill that would have prohibited, absent medical emergency, abortions performed when a fetal heartbeat is detected (at approximately six weeks gestational age). He signed another bill, however, that prohibits abortions performed after 20 weeks fetal age, which is determined through ultrasound and is roughly equivalent to 22 weeks gestational age, notwithstanding decisions by the Ninth Circuit Court of Appeals that similar Arizona and Idaho laws are unconstitutional.
The rationale for a 20-week ban is a legislative assertion that “an unborn child of a probable post-fertilization age of twenty weeks or more” is “pain-capable.” The law has a sounder legal basis than the fetal heartbeat law because it could be upheld as protecting a legitimate state interest in avoiding fetal pain and impacts abortions closer to viability (generally recognized at 24 weeks due to a 54.9 percent survival rate with neonatal intensive care).
Nearly 99 percent of abortions take place before 21 weeks gestation, which is why legislatures seeking to preserve the most unborn lives have enacted laws designed to reduce pre-viability abortions. Viability testing, waiting periods and informed consent requirements have been ruled constitutional as long as exceptions are made for the life and health of pregnant women.
The Supreme Court has upheld viability testing at 20 weeks, even though the tests “increase the expense of abortion,” and 24-hour waiting periods. Parental consent laws for minors are constitutional as long as a judicial override is possible and informed consent laws are generally permitted. In 2014, however, the Fourth Circuit struck down a North Carolina law that forced doctors to describe “real-time” fetal development because their compulsory speech provisions were not medically justified.
In contrast, the Ninth Circuit upheld a California law requiring pregnancy-related clinics to post notices regarding the availability of publicly funded abortion services. The court ruled the state’s interest in disseminating that information outweighed the free speech rights of pregnancy crisis centers.
Lower federal courts currently are grappling with a number of other pro-life initiatives, such as fetal burial, fetal discrimination and defunding laws. In June 2016, a federal district court enjoined Indiana’s fetal burial law because the court found no rational basis for requiring abortion providers to treat fetal remains differently from surgically removed human tissue. Another Indiana requirement that banned abortions if based on the race, gender or disability of an unborn child has been enjoined and a trial court’s injunction against Ohio’s defunding of Planned Parenthood is on appeal. The defunding law was declared unconstitutional because, although states are not required to fund abortions, a state may not financially discriminate against an otherwise eligible medical provider solely because it offers abortion services.
Legislative actions and judicial decisions do not occur in a vacuum. The law provides little comfort to those who must make excruciating decisions regarding unintended pregnancies and tragic medical dilemmas. Perhaps the only good news is that U.S. abortion rates are at their lowest level since 1973.
Ellen K. Boegel, who teaches legal studies at St. John’s University in New York, clerked for the U.S. Court of Appeals for the Second Circuit.