Fetal Viability and 20-Week Bans: A Constitutional ‘Bright Line’ for Abortion Restrictions

The battle over Arizona's 20-week abortion ban re-affirms a fundamental right to choose abortion, but by embracing fetal viability as a legal cut-off point is the court just making matters worse?

A flurry of legal activity over state level abortion restrictions occupied much of the federal court's attention last week. Preamble to the Constitution via Shutterstock

As Arizona’s 20-week abortion ban made its way through the legislature and during its initial legal challenge, defenders of the bill made it clear that the measure, which banned all abortions beyond 20 weeks’ gestation and made little exception for the life of the mother, was designed to do more than just severely restrict abortion access in the state. It was designed to fire the most direct shot at Roe v. Wade yet.

That point was not lost on a panel of judges for the Ninth Circuit Court of Appeals, who answered lawmakers’ challenge to reconsider whether, under any circumstances, states can ban abortions pre-viability with a resounding “no.” But the panel went one step further in its opinion by not simply rebuking U.S. District Judge James A. Teilborg for a decision to uphold a law that it deemed “patently unconstitutional,” but by practically daring the state of Arizona to push its defense of the bill further.

The 44-page opinion lays out, in plain and clear terms, nearly four decades of case law that share a common, unmistakeable feature: an embrace of the legal truth that any law that bans abortions pre-viability is per se unconstitutional. Citing case after case, the Ninth Circuit’s opinion details how states may regulate the mode and manner of abortion care prior to fetal viability but may not, under any circumstances, proscribe a woman from electing abortion, nor impose an undue burden on her choice by regulating that procedure out of existence.

Take note, Republicans.

Piece-by-piece the Ninth Circuit panel picked apart the test balloon of legal challenges to the Roe viability standard. First the justices sharply criticized Judge Teilborg’s decision to take a motion for a preliminary injunction and, without notice to the parties, convert it to a challenge to the entire merits of the law. This procedural move was nothing short of total judicial activism and enabled Teilborg to reach some of his more outlandish constitutional analysis, despite the fact that the there was a scant record of evidence before it.

Were the factual record or the district court’s factual findings of pertinence to our decision, we would be troubled by the procedure followed. But neither party has challenged the district court’s approach. And because we ultimately agree with the Physicians that this case if fully controlled by binding precedent, the truncated nature of the record does not matter to our decision. We therefore do not consider this procedural matter further.

Once the judges dispensed of the procedural issues, they turned their attention to the heart of Teilborg’s analysis, which was that the Arizona law was not a ban on abortions but simply a very strenuous regulation. At the district court, Judge Teilborg had differentiated between a “ban” and a “regulation” like this: Because the law contains a health exception that allows for some abortions to take place post-20 weeks, it does not ban all abortion pre-viability. Furthermore, when considered as a regulation and not a prohibition the law may force some women to make the decision to terminate their pregnancy earlier, but it doesn’t strip them of the ability to choose to terminate their pregnancies before 20 weeks and is therefore nothing more than a “time limitation” on their right to terminate pre-viability. Given that, as Judge Teilborg reasoned, the state has a legitimate interest in fetal life and promoting the health of pregnant women, this time limitation was not a substantial obstacle to exercising that right and the law was, therefore, constitutional.

Attorneys for the state of Arizona teed up Teilborg’s analysis by arguing that the viability standard set out in Roe and re-affirmed for the next 40 years was simply dicta, or the legal equivalent of blowing smoke. That characterization, the Ninth Circuit panel concluded was “most certainly incorrect.”

As Roe and its many progeny make clear, viability, although not a fixed point, is the critical point. The Supreme Court has recognized that viability varies among pregnancies and that 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. Indeed, such trends led Justice O’Connor to remark, prior to Casey, that “the Roe framework….is on a collision course with itself.” But while “time has overtaken some of Roe’s factual assumptions,” prompting the abandonment of the trimester framework, “no changes of fact have rendered viability more or less appropriate at the point at which the balance of interest tips.”

It’s that full-forced defense of viability as the cut-off point for when the state can ban abortion that is the most important, because, as the Arizona case illustrates, a key component of the legal argument challenging Roe is to find a way to either abandon viability altogether or replace it with something else, like “fetal pain.” And as the Arizona case also illustrates, at least one sitting federal judge was willing to bite and do so.

Fetal viability as the earliest point when states can legally ban most abortions is an imperfect standard at best, but it is one that has provided the most legal shelter from efforts to overturn Roe. The Ninth Circuit, in forcefully re-affirming that standard, also forcefully re-affirmed the idea that a woman’s body is not de facto property of the state once she becomes pregnant. And given the comments made by lawmakers and anti-abortion activists, it’s critically important to have that idea re-affirmed. But it’s also worth asking whether or not, as technology advances, who is best served by embracing a standard that continues to recognize the right to terminate a pregnancy in relation to the rights of the state and developing fetus.