Attorneys for Arkansas recently filed a brief with the U.S. Court of Appeals for the Eighth Circuit, asking the court to allow two pre-viability abortion bans to take effect. The first is a gestational ban prohibiting abortion after 18 weeks. The second is a genetic discrimination ban, prohibiting abortion after a diagnosis of Down syndrome.
“But wait!” you may be thinking. “I thought pre-viability abortion bans are unconstitutional!”
They are. But attorneys for Arkansas are trying to get around that rule by playing word games and ignoring the plain language of Roe v. Wade and Planned Parenthood v. Casey.
Let’s start with Arkansas’ argument as to why its 18-week ban is constitutional (spoiler: it’s preposterous). Attorneys for the state seem to think that calling the ban something other than a ban will somehow fool a court into letting it slide. Arkansas has tried this before: In a 2015 case called Edwards v. Beck, Arkansas defended its 12-week ban by arguing that the law wasn’t a ban but rather a regulation on the time period during which a person could obtain an abortion. The state argued the law didn’t ban abortion because it allowed for abortions in all cases up to the point of both 12 weeks’ gestational age and the detection of a fetal heartbeat. Abortions after 12 weeks would be available only in narrow, limited circumstances: if the pregnant person’s life is at risk, the pregnancy is a result of rape or incest, or in cases of “lethal fetal deformity.” The Eighth Circuit rejected that argument.
This time, Arkansas’ attorneys are trying a different tactic. They are categorizing the 18-week gestational ban as a “deadline.”
“Arkansas’s gestational-age deadline is not an 18-week ban,” the state’s attorneys argue in their brief. “The deadline responds to evidence linking increased maternal risk to increased gestational age and seeks to limit that risk. It also allows Arkansas to join the many nations limiting abortions after 18 weeks’ gestation.”
Setting aside the fact that the United States doesn’t base its laws on what other nations are doing, and that it’s odd that conservatives, who tend to tout American exceptionalism, would even make such an argument, Arkansas’ attempt at wordplay is as transparent as it is absurd.
HB 1439, which the Arkansas legislature has dubbed the “Cherish Act,” reads as follows:
Except in a medical emergency or if the pregnancy results from a rape … or incest …, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being is determined to be greater than eighteen (18) weeks’ gestation.
That is a ban. It is not a deadline. It is not a regulation. And since a fetus is not considered viable until around 24 weeks, it’s a pre-viability abortion ban and, therefore, unconstitutional.
And then there’s the state’s argument in support of its genetic discrimination ban, SB 2. The ban is unconstitutional because it also is a pre-viability abortion ban. But not according to Arkansas’ attorneys, who argue in their brief that when the lower district court blocked enforcement of the two laws, it “committed reversible legal error by declaring a novel, absolute right to previability abortion. This led it to completely bypass the undue-burden analysis when considering Arkansas’s gestational-age deadline and genetic-discrimination ban.”
This is utter nonsense. There actually is an absolute right to pre-viability abortion, and the U.S. Supreme Court has said as much multiple times, as have federal appeals courts across the country. Despite this legal precedent, anti-choice advocates in Arkansas and elsewhere argue that the Court’s 2007 ruling in Gonzales v. Carhart, which upheld a “partial-birth” abortion ban—a ban on a specific abortion procedure that takes place before viability, known as an intact dilation and extraction, or intact D and X—means that there is no absolute right to a pre-viability abortion.
In their view, Gonzales gave states virtually unlimited power to restrict access to pre-viability abortions so long as those restrictions don’t impede on the “ultimate decision of a pregnant woman to terminate her pregnancy.” But this is a deliberate mischaracterization of the law and decision.
Gonzales does not permit states to enact outright pre-viability bans. Gonzales rests on the fact that dilation and evacuation abortion is still available throughout the period up to fetal viability as an alternative to intact D and X, or what the anti-choice movement has dubbed “partial-birth” abortions. It is a regulation of the type of abortion available, unlike gestational age limits, which are bright-line bans sometimes tied to fetal development markers.
Unconstitutional Means Unconstitutional
Since anti-choice advocates don’t seem to get the central holding of two major abortion cases, it bears reviewing them to set the record straight. Under Roe, fetal viability is a critical benchmark, legally speaking, because it is the point at which a fetus can survive outside the womb. Up until that point, a state cannot outright ban abortion. However, it can interfere, as lawmakers have done, by passing regulations, many of them onerous and intended to make it more difficult for people to access abortion care.
But after fetal viability, the rules change. At that point, the Supreme Court in its abortion jurisprudence prioritizes a state’s interest in potential life over the pregnant person’s right to terminate their pregnancy. States are permitted to force pregnant people to carry an unwanted pregnancy to term with one caveat: State laws banning abortion must contain a health exception. In other words, states can force you to give birth unless doing so will kill you or almost kill you.
That’s the central holding of Roe v. Wade. It’s also the central holding of Planned Parenthood v. Casey, which upheld the Court’s ruling in Roe and reiterated that: “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.”
In its recent ruling striking down Ohio’s Down syndrome reason ban, the Sixth Circuit cited Casey and noted that “‘[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion … Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’”
In a 2018 case involving so-called nondiscrimination provisions of an Indiana law, the Seventh Circuit held that the prohibitions on abortion based on race, sex, or a disability diagnosis like Down syndrome “clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.”
“[T]he fact remains that Casey has plainly established an absolute right to have an abortion before viability. The joint opinion says that nothing can stand between a woman and her choice of abortion before viability,” the Seventh Circuit ruled.
This principle is not unclear or open for interpretation. Pre-viability abortion bans are unconstitutional. Period. And they are not subject to the undue burden analysis that the Supreme Court developed in Casey, contrary to what Arkansas’ attorneys claim.
With respect to its 18-week “deadline,” Arkansas argues that plaintiffs didn’t make an effort to estimate the fraction of women who would be required to forgo or delay an abortion. They assert the plaintiffs conceded that they infrequently see cases beyond 16 weeks, and no effort was made to describe how the 18-week ban would be an undue burden.
But there was no need for the plaintiffs to do so. No undue burden analysis is required because pre-viability abortion bans by their very nature present a substantial obstacle to abortion; they are necessarily an undue burden.
Where Justice Thomas Comes In
As for the disability ban, Arkansas is trying to bypass Roe and Casey by arguing that the ban is intended to remedy ”a shameful history of discrimination” against people with disabilities, and that Arkansas has a “compelling interest in combating that discriminatory trend.”
But the Supreme Court in Casey already accounted for a state’s interest in protecting the life of the fetus that may become a child, and that includes Arkansas’ claimed interest in protecting fetuses from discrimination. The Court wrote, “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”
Notably, states are making these arguments because Justice Clarence Thomas has demonstrated that he is amenable to them. His concurrence in Box v. Planned Parenthood of Indiana and Kentucky earlier this year (which I wrote about here) contains a lengthy discussion about eugenics. Thomas argues that disability bans “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
I suppose abortion could become a tool of modern-day eugenics—if states or governments begin forcing people to have abortions in order to “improve the population.” Because that’s what eugenics is: a systemwide policy aimed at controlling the reproduction of a population. But disability bans prevent individual pregnant people from making choices about whether to terminate their own pregnancy. That’s not eugenics—that’s individuals maintaining their reproductive autonomy.
These arguments regarding disability bans aren’t new, and Arkansas is not the only state making them. But they are becoming more prevalent, especially since Justice Thomas is champing at the bit to decimate the Court’s abortion jurisprudence.
Ohio is making the same claims in its effort to save its disability ban. Last month, attorneys for Ohio asked the Sixth Circuit to rehear its case en banc. And last week, more than a dozen states filed an amicus brief supporting Ohio’s position that it should be permitted to ban “eugenic abortions.” The brief is tailor-made to appeal to Thomas’ anti-abortion sensibilities.
Anti-choice lawmakers across the country desperately have been trying to figure out a way to get one of their pre-viability abortion bans to stick. With a conservative majority Court, and courts across the country having been stacked with Trump appointees, it’s only a matter of time.
But, at least for now, it doesn’t matter whether a state calls a law prohibiting abortion prior to fetal viability a “ban,” “regulation,” or “deadline.” It is still unconstitutional.