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Constitution Check: Will changes in fetal medicine diminish abortion rights?

June 4, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the U.S. Court of Appeals for the Eighth Circuit’s decision to overturn an Arkansas abortion-restricting law.




The Supreme Court has ruled that “a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability….This court is bound by the Supreme Court’s decision….However, undeniably, medical and technological advances along with mankind’s ever increasing knowledge of prenatal life since the [Supreme] Court decided Roe v. Wade and [later decisions] make application of the viability standard more difficult and render more critical the parties’ obligation to assure that the court has the benefit of an adequate scientific record in cases where the standard is applied. The Supreme Court has recognized that viability varies among pregnancies and that the improvements in medical technology will both push later in pregnancy the point at which abortion is safer than childbirth and advance earlier in gestation the point of fetal viability.”


– Excerpt from a decision by the U.S. Court of Appeals for the Eighth Circuit on May 27, as it struck down an Arkansas law that prohibited abortion when a fetal heartbeat can be detected and the pregnancy has reached the twelfth week. (Some parts of this quotation were adopted by the appeals court from remarks in other courts’ opinions on the issue.)




For well over a century, indeed as far back as 1891, the Supreme Court has held the view that individuals have a constitutional right to personal privacy against unwanted medical treatment. It relied on that view as part of its reasoning for recognizing a constitutional right to abortion in the 1973 decision in Roe v. Wade.


It was clear to the court in 1973, and has remained clear since, that there is a close relationship constitutionally between that right and the current state of medical knowledge about pregnancy and childbirth. The court constructed a three-stage sequence for abortion rights that was based directly on assumptions about fetal survivability outside the mother’s body – that is, about fetal viability.


Although that three-stage framework has since been modified, the majority of the court has never abandoned the basic notion that states are barred from imposing a total ban on abortion before the time when a fetus could survive independently if delivered.


But that very rule, and the medical assumptions upon which it was based, has long given opponents of abortion what they regard as a basis for arguing that, sooner or later, medical science would recognize fetal viability at earlier stages in pregnancy, so states could prohibit the procedure earlier and earlier in order to protect potential fetal life.


Some state legislatures, relying upon a perception that fetal life begins from the moment of fetal conception, have been passing laws that assume fetal viability closer to conception – as early as the sixth week of pregnancy.   So far, those laws have not been upheld by the courts because of the lack of medical consensus about just when a fetus, in most cases, would survive outside the woman’s body.


In the most recent such decision, nullifying an Arkansas 12-week prohibition, the U.S. Court of Appeals for the Eighth Circuit relied entirely upon the testimony of a doctor that no fetus could survive independently, “in any circumstances,” at that point.   But the court noted that lawyers for the state in defending the law had not disputed that testimony.


That court also went on to suggest that the point of fetal viability definitely has been changing. “When Roe was decided,” it said, “viability was usually placed at about seven months (28 weeks) but could occur earlier, even at 24 weeks. But the Supreme Court recognized [in 1992] how time has overtaken some of Roe’s factual assumptions, including that advances in neonatal care have advanced viability to a point somewhat earlier.”


The appeals court also commented that it is now agreed among doctors that the point of viability may vary on an individual basis. And it called attention to reports that, in 2007, a woman in Florida had given birth at 21 weeks and six days after conception. It quoted a law review article saying that this was the youngest fetus ever known to have survived delivery.


The opinion then remarked: “Because a viability determination necessarily calls for a case-by-case determination and changes over time based on medical advancements, legislatures are better suited to make the necessary factual adjustments in this area….To substitute its own preference to that of the legislature in this area is not the proper role of a court.”


What those remarks mean when a state abortion-restricting law does get into court, the appeals court made clear, is that lawyers defending such a measure must be prepared to show that current medical learning supports the particular choice of the viability standard that the legislators have made.   The court appeared to be somewhat disappointed that, in the Arkansas case, the state’s lawyers had not contested the doctor’s perception that no fetus could survive at 12 weeks.


That court may have more to say on this question when it decides another new case, involving a North Dakota law that makes it a crime to perform an abortion when a fetal heartbeat has been detected. It is generally understood in medical practice that a fetus’s heartbeat can be detected as early as six weeks.   In the court case involving a challenge to that law, the operators of the only clinic in the state performing abortions said that the law would prohibit almost all abortions there. That clinic performs abortions through about 17 weeks, and clinic doctors testified that no fetus would be viable at that point.


However, a doctor testifying in favor of the law said that viability occurs at conception, based on laboratory evidence that a new embryo can survive in a test tube for two to six days, as part of a fertilization procedure that may lead to pregnancy.


A federal judge has struck down the North Dakota law, commenting that the Supreme Court has made clear “that viability, although not a fixed point, is the critical point.” The judge rejected the testimony of the doctor who, it said, had sought to redefine viability by a different test than the one the Supreme Court had used – ability to survive, on a sustained basis, outside the woman’s body.


The state of North Dakota appealed that decision to the Eighth Circuit Court, which held a hearing on that case on the same day of the Arkansas case’s hearing. A decision is now awaited on the North Dakota law. Ultimately, one of these test cases is sure to reach the Supreme Court.


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