Some twelve states have shortened the period for lawful abortions — below the period set by the Supreme Court decades ago. Rather than 24 weeks, Arizona set a 20 week period.
The appeal presented three potentially sweeping questions: First, where the Ninth Circuit was correct that the “viability” line from Roe v. Wade and Planned Parenthood v. Casey remains the only critical factor in determining constitutionality; Second, whether the Ninth Circuit was wrong in refusing to consider fetal pain as a state interest as well as other factors; and finally, whether Roe v. Wade and its progeny should be revisited in light of new medical research.
The Ninth Circuit decision will stand, including the following holding:
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. See Casey, 505 U.S. at 860 . Indeed, such trends led Justice O’Connor to remark, prior to Casey, that “the Roe framework… is on a collision course with itself.” Akron, 462 U.S. at 458 (O’Connor, J., dissenting). 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 as the point at which the balance of interests tips.” Casey, 505 U.S. at 860-61 . Evolving medical realities have not eroded Roe’s central legal holding-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.” Id. at 860 . Casey could not have been clearer when it stated:
“The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided.”
This will not be the last we hear of this issue. Texas and other states are still raising analogous arguments in challenges. Viability as a standard put the abortion rulings in a constant tension with medical science as technology allows earlier and earlier dates of viability. At some point, those advances will be difficult to ignore unless the Court removes viability as such a critical factor in the constitutional analysis.