A federal appeals court, arguing that the Supreme Court’s abortion rights rulings leave too little room for states to limit the procedure to protect fetal life, has urged the Justices to reconsider a basic idea behind Roe v. Wade.  The idea, never explicitly abandoned by the Court, is that states are forbidden to ban abortions before a fetus is capable of living outside the woman’s body.

The U.S. Court of Appeals for the Eighth Circuit, in a new ruling on Wednesday involving the nation’s most restrictive abortion control law, argued that the so-called “fetal viability” approach has become “unsatisfactory” because it has not kept pace with changes in fetal medicine.  Although the North Dakota law at issued was struck down, the three-judge panel made it clear it ruled that way because the Court had given it no choice, but that it was troubled at having to do so.  State legislatures, not courts, should be making decisions about the state of medical science, it said.

This marked the second time in recent months that the same three Eighth Circuit judges have raised doubts about using fetal viability as the crucial factor in analyzing state power to curtail or bar abortions. They did so in a ruling in May, striking down a less restrictive Arkansas law.  In that case, the state’s lawyers had not challenged the testimony on when a developing fetus would be viable.  The panel thus said that lawyers, especially for a state defending an abortion ban, had a special duty to put before a court the latest in fetal medicine findings.

The three judges had heard the Arkansas and North Dakota cases on the same day, but issued separate rulings, released about two months apart.

This time, with North Dakota’s lawyers strongly disputing the viability point, those judges moved further in their critique, directly calling on the Supreme Court to reconsider.  “Good reasons exist,” it said, “for the Court to reevaluate its jurisprudence….To begin, the Court’s viability standard has proven unsatisfactory because it gives too little consideration” to a goal that the Justices themselves have said they support, protecting a state’s “substantial interest in potential life throughout pregnancy.”

Those words are a quotation taken from the Court’s 1992 decision in a Pennsylvania abortion case (Planned Parenthood v. Casey) partly reaffirming Roe v. Wade.  That decision, though, had left in place the view that, before fetal viability, a state could not constitutionally prohibit abortions, although it could impose some forms of regulation.

The abortion issue is likely to return to the Court at its next Term, in several cases.  Already awaiting the Court’s reaction are new cases from Mississippi and Texas testing a state’s power to limit abortions by imposing new medical practice standards on clinics and doctors.   State lawyers in Arkansas and North Dakota have the option of asking the Court to review their new laws, which are direct rather than indirect measures to stop abortions at earlier stages in pregnancy.

The North Dakota law would ban abortions after about six weeks of pregnancy, because it would impose a ban as soon as a fetal heartbeat could be detected, and it is generally understood that this could occur as early as the sixth week.   The Arkansas law is also keyed to detection of a fetal heartbeat, but it would not impose a ban until the twelfth week of pregnancy.  The Eighth Circuit struck down both, finding that neither could meet the long-standing “fetal viability” test, since the Supreme Court had ruled several times that viability was not likely before the twenty-fourth week.

In both of its rulings, the Eighth Circuit panel had credited arguments and evidence which suggested that doctors are now able to keep fetuses alive if they are delivered at earlier stages of pregnancy than the twenty-fourth week.   The panel actually took note of a report of one fetus surviving after being delivered at twenty-one weeks and six days.

In the North Dakota case, the panel appeared also to credit the argument of state lawyers that the science of fetal survivability has now advanced to the point that a fetus can be saved, as a “test tube baby,” by being taken out of the woman’s body as early as the sixth day, and then replaced for continued development to childbirth.  If a state could act to protect the developing pregnancy at that very early point, it would come close to being able to regulate close to the moment of conception — a long-term goal of abortion opponents.

The Eighth Circuit, besides analyzing what it took to be new evidence about the viability issue, interpreted Supreme Court decisions since Roe v. Wade as actually recognizing that fetal viability is not a fixed phenomenon, and may be established at earlier points in pregnancy than the twenty-fourth week.

That is the kind of policy issue, the panel said in its latest ruling, that the Justices’ abortion rulings have taken away from state legislatures.

The Eighth Circuit also interpreted more recent rulings by the Court on abortion rights as being more focused on fetal protection.  “The evolution in the Supreme Court’s jurisprudence,” it said, “reflects its increasing recognition of states’ profound interest in protecting unborn children.”

North Dakota’s lawyers have the option of asking for en banc rehearing of the case by the full Eighth Circuit, or else taking the case directly on to the Supreme Court.  Arkansas’ lawyers failed earlier this month to get en banc rehearing in their case in the Eighth Circuit.

The two rulings by the panel were made by Circuit Judges Duane Benton, Bobby E. Shepherd, and Lavenski R. Smith.  The Arkansas ruling was issued “per curiam” — that is, for the panel without designating a specific author. Judge Shepherd authored the North Dakota opinion, with support of his two colleagues.

 

 

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Appeals court wants Court to take new look at abortion, SCOTUSblog (Jul. 23, 2015, 8:48 PM), http://www.scotusblog.com/2015/07/appeals-court-wants-court-to-take-new-look-at-abortion/