In March, Wisconsin Gov. Scott Walker, who plans to join an increasingly crowded Republican primary for the 2016 presidential nomination, said that he would sign a 20-week abortion ban should one reach his desk and that he would support a similar federal ban. With that announcement, Walker joins a slate of fervently anti-choice Republican candidates—Sen. Rand Paul (KY), Sen. Ted Cruz (TX), former governor of Florida Jeb Bush, former governor of Arkansas Mike Huckabee, retired neurosurgeon Ben Carson, former business executive Carly Fiorina, and Sen. Marco Rubio (FL)—who support a flatly unconstitutional law.
Make no bones about it, 20-week abortion bans are unconstitutional. Full stop. They’ve been unconstitutional since Roe v. Wade legalized abortion in 1973, and they will remain unconstitutional unless one of two things happens: the U.S. Supreme Court either overturns its landmark decision or reverses 40 years’ worth of case law about the importance of fetal viability.
Fetal viability is a crucial benchmark for a pregnant person, legally speaking. Before fetal viability, the point at which a fetus can survive outside the womb, it’s your body, your rules—with some interference from states that make it more difficult for people to access abortion care, of course. (States will be states, after all. They may be forced to let you decide what to do with your own body, but they’ll be damned if they don’t do everything in their power to influence your choice, even by making it impossible for you to exercise it.) But after fetal viability, the rules change. At that point, states have an interest in “potential life” and they get to make the rules. States can lawfully force you to carry an unwanted pregnancy to term unless doing so will kill you or almost kill you.
That’s the central holding of Roe. You have the right to an abortion if the fetus isn’t viable. After viability, however, states can ban abortion, as long as those bans contain a health exception.
Even though the Court in Roe decided that fetal viability would be the benchmark for the balance between a person’s right to choose and the state’s interest in “potential life,” the Court was silent on when fetal viability occurs. It left that decision up to doctors. (It is widely cited to occur around 23-24 weeks.)
And so it has been for 40 years. This constitutional principle has been repeated over and over, and the Supreme Court and lower federal courts have never strayed from it.
In 1976, for example, in a case called Planned Parenthood v. Danforth, the Court said, “we recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility in the term.”
Three years later in Colautti v. Franklin, the Court said it again, but with a bit more specificity: “[N]either the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus.” (Emphasis added.)
In 1989, the decision in Webster v. Reproductive Health Services was even more specific than it had been in Colautti. It said, “the legislature could not give one element such as gestational age, dispositive weight.”
And in 1992, the Court in Planned Parenthood v. Casey reaffirmed the central holding of Roe v. Wade—that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”
In the past 40 years, the Court has never wavered from the fetal viability benchmark.
So what did state legislatures do? They began doing exactly what the Supreme Court said time and again they could not: enacting laws that ban abortion before fetal viability.
In 1996, the Utah legislature banned abortion at 20 weeks and tried to justify it by including in the legislation a statement equating viability with a gestational age of 20 weeks. The Tenth Circuit saw through Utah’s ploy. In Jane L. v. Bangerter, the court ruled that the law was unconstitutional because—you guessed it—it banned pre-viability abortions.
More recently, the Nebraska legislature became the first state to pass the so-called Pain-Capable Unborn Child Protection Act in 2010. And within five years, 14 additional states had passed almost identical laws, with West Virginia passing its 20-week ban less than two months ago.
Plaintiffs have continuously challenged these laws and courts have blocked them.
In Isaacson v. Horne, for example, a district court in Arizona attempted to escape the constitutional prohibition on pre-viability abortion bans by claiming that HB 2036, Arizona’s 20-week ban, wasn’t really a ban, but a strict regulation. The Ninth Circuit didn’t buy it:
“[A] woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable. A prohibition on the exercise of that right is per se unconstitutional.
The parties here agree that no fetus is viable at twenty weeks gestational age. The District Court so recognized, declaring it undisputed that viability usually occurs between twenty-three and twenty-four weeks gestation. Accordingly, Arizona’s ban on abortion from twenty weeks necessarily prohibits pre-viability abortions.
Elsewhere, a lawsuit filed in Georgia resolved in favor of three physicians who challenged the state’s 20-week ban, HB 954. The state court blocked the law because it prohibited pre-viability abortion care.
Courts have consistently smacked down legislative attempts to ban abortions at 20 weeks. But states are undeterred by such pedestrian concerns as constitutionality.
This year alone, 12 states have introduced 19 laws banning abortion after 20 weeks: Illinois (HB 3561), Iowa (SF 91), Kentucky (HB 393), Maryland (HB 961, SB 511, and HB 492), Massachusetts (H 1550), New Mexico (HB 390), Ohio (HB 117 and SB 127), Oregon (HB 2388), South Carolina (H 3114, S 28, S 130, and S 25) Virginia (HB 2321), and West Virginia (HB 2568 and HB 2153). But only one—West Virginia’s—has become law.
And it’s not just states that are trying to pass these unconstitutional laws. After failing to bring a federal 20-week abortion ban for a vote back in January of this year, House Republicans are gearing up for another vote on HR 36. This proposal bans abortion after 20 weeks nationwide. It would also be unconstitutional under Roe.
Obviously, when it comes to interfering with the right to choose, that these bans are unconstitutional doesn’t matter to anti-choice lawmakers. The “fetus first” philosophy held dear by so many anti-choicers doesn’t concern itself with the rule of law or silly questions about what is or is not constitutional. It concerns itself with fetuses—first.