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20 Week Abortion Laws Headed to SCOTUS? Is Viability Still Viable?

By William Peacock, Esq. on October 25, 2013 | Last updated on March 21, 2019

The court has already decided to take on abortion protest laws, and should, after hearing back from the Oklahoma Supreme Court, take on restrictions on medical drug-induced abortions as well. Why not add a third abortion-related case to the docket, especially since at least a dozen states now have laws restricting (or banning) abortions at or after 20-weeks post-fertilization?

Back in May, we covered the Ninth Circuit's unanimous decision in Issacson v. Horne. Late last month, Arizona petitioned for certiorari, according to Lyle Denniston at SCOTUSblog, and if the response is received in time, the case could make this year's docket.

The Ninth Circuit struck down the state's 20-weeks-or-later (with a health and safety exception) ban, stating that the line of viability from Roe v. Wade and its progeny remained controlling law.

Arizona's Law: Reasonable Regulation or Ban?

H.B. 2036, passed last year, prohibits physicians from performing abortions on any fetus with a gestational age of twenty weeks or later, absent a medical emergency. A separate law bans post-viability abortions, also with the emergency exception.

An interesting note, courtesy of NPR: Arizona's law, as well as many of the other 20-week laws, use the time of fertilization as the starting point for a fetus's age. Doctors use the time of the last menstrual period, which is two weeks earlier. In other words, we're talking about a 22-week law, and the point of viability is 24 weeks. This entire dispute is over two weeks.

In any case, though the district court found the restriction to be reasonable restriction, not a ban, the Ninth Circuit disagreed. Judge Kleinfeld concurred, though he wrote a separate, reluctant concurrence highlighting fetal pain arguments and comparing abortion to the death penalty, before stating that he was "bound to apply Supreme Court authority."

Arizona, however, argues both that the line became fuzzy after the Supreme Court upheld the partial birth abortion ban (though the court clearly reaffirmed the viability line in that opinion), and that the viability standard should be reconsidered in light of recent research showing that fetuses can feel pain before the point of viability.

End of the Viability Standard?

In their petition for certiorari, Arizona officials ask the court to reconsider whether viability is the only relevant factor in determining constitutionality of abortion regulations. Does the state's interest in preventing "documented fetal pain" outweigh the two weeks' of additional restriction on a woman's right to choose? And if precedent does control the matter, should it be revisited?

If the court is willing to reconsider the viability line, one which Justice Sandra Day O'Connor, the devisor of the line, once said was "clearly on a collision course with itself," this might be the perfect vehicle for such a reconsideration.

The issue is two weeks of time, in which some disputed research shows fetal pain, and which only an estimated several thousand abortions are carried out (out of an estimated 1.2 million per year), reports The New York Times.

The Times also notes that despite the small number, those abortions are often carried out after the discovery of birth defects, which are detected in the second trimester. That burden, incidental or not, must be weighed against the state's concerns over fetal pain and increased risks to the health of the mother from later abortions.

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