Advocates Urge Eighth Circuit to Revisit Viability Standard in ‘Roe’

Arkansas is the latest state to see a direct attack on Roe v. Wade as fetal "personhood" advocates ramp up attacks on reproductive autonomy.

Arkansas is the latest state to see a direct attack on Roe v. Wade as fetal "personhood" advocates ramp up attacks on reproductive autonomy. Justice via Shutterstock

Attorneys for the anti-choice legal advocacy organization Liberty Counsel told the U.S. Court of Appeals for the Eighth Circuit recently that in light of modern advances in medicine, it’s time to revisit the viability standard that was first articulated by the Supreme Court in Roe v. Wade.

The viability standard sets fetal viability as the point at which states can begin to ban abortion outright. Thus, abortion bans prior to fetal viability are on their face unconstitutional.

In an amicus brief filed in Edwards v. Beck—the lawsuit challenging Arkansas’ Act 301, which bans abortion at the point a fetal heartbeat is detected, but not before 12 weeks—Liberty Counsel makes it clear the purpose of revisiting viability is to re-establish writ large the ability to prosecute people who terminate pregnancies.

“The Supreme Court majority in Roe v. Wade mischaracterized early reported cases in the 14th Century, which did not classify abortion as ‘murder,’ as somehow reflecting a common law ‘freedom’ for pregnant women to procure abortions without threat of criminal sanction,” Liberty Counsel states. “In fact, however the early cases merely reflected the state of scientific knowledge at that time in the context of stringent proof requirements for a murder conviction.”

The brief continues:

Legal and medical experts did not have the tools available to determine whether a child who was stillborn following an injury was alive at the time of the injury, and therefore could make the “beyond a reasonable doubt” determination that the defendant had killed a child who was alive at the time of the incident. Reviewing the early cases in context shows that the failure to indict was not due to a lack of recognition of the humanity of children in the womb, but to problems of proof, i.e., had the abortionst’s act really been the cause of the death of the child? The cases recognized that killing a child in the womb was a crime, but proof problems made prosecution and conviction for homicide difficult.

As scary as Liberty Counsel’s argument to the Eighth Circuit is, the legal framework the group advances in Edwards v. Beck is already developing in places like Indiana, Mississippi, and Alabama, where prosecutors are trying to hold women criminally accountable for their pregnancy outcomes, by relying on concepts of fetal “personhood” as a basis for charging women under other criminal statutes.

Alabama Supreme Court Justices Tom Parker and Roy Moore went out of their way to make the case for prosecuting pregnant women in concurring opinions in Ex Parte Hicks, a decision that upheld the conviction of Sarah Janie Hicks, under Alabama’s child endangerment statute, for giving birth to a healthy baby who later tested positive for cocaine. “Liberty will continue to fine no refuge in abortion jurisprudence until courts … like Alabama recognize an unborn child’s inalienable right to life at every point in time and in every respect,” Parker wrote. “Why should legal protection of an individual at a particular point in time depend entirely upon his or her subjective relation to the killer?”

It’s worth repeating that in the Hicks case, Sarah Janie Hicks delivered a healthy baby but was still prosecuted.

More recently, prosecutors in Oklahoma declined to criminally charge a teenager who allegedly self-induced an abortion, citing a lack of evidence.

Importantly, Arkansas is not the only state where anti-choice activists are trying to test the limits of the Roe viability doctrine directly, but it may be among the first where anti-choice activists directly acknowledge that overturning Roe’s viability standard is central to advancing nationwide the power to police pregnancy outcomes. Arizona tried unsuccessfully to have the Roberts Court revisit the issue in the legal challenge to its 20-week abortion ban. Meanwhile, attorneys for the State of North Dakota defend that state’s six-week abortion ban by arguing that the issue of when a fetus becomes viable is a matter of scientific dispute. Similar arguments appear in the legal challenges to the contraception benefit in the Affordable Care Act, where those businesses who oppose the coverage requirement wrongly claim intrauterine devices (IUDs) and emergency contraception are abortifacients.

Anti-choice advocates have long invoked the idea of fetal “personhood” and the notion that life begins at conception as a basis for their opposition to abortion rights. But these cases that directly challenge the viability doctrine of Roe reflect a renewed push in the legal fight for “personhood.” The fact that we’re seeing mutations of this argument show up in criminal prosecutions, in addition to the contraception argument, shows this is a multi-faceted legal strategy at work.

So far, federal courts have held the line and upheld viability as the point at which the state can ban abortion outright, and when put to voters “personhood” initiatives have failed, repeatedly. But we can’t let those victories suggest that the threat posed by “personhood” advocates has abated. Because it hasn’t.

Advocates challenging the Arkansas ban have until June 26 to submit their response brief to the appeals court.