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Is a key to Roe v. Wade open to question?

It is a fairly vague hint, but the Supreme Court is showing some interest in a new case asking it to cast aside the basic dividing line long ago set for state power to prohibit abortions.  Since the Court in the 1973 decision in Roe v. Wade first created a constitutional right to terminate pregnancy, it has never abandoned the principle that states may not ban abortions until the point of “fetal viability” —  when the fetus would be capable of living if delivered alive.  A number of states have passed laws to impose earlier bans.

Arkansas officials have appealed one of two rulings by the U.S. Court of Appeals for the Eighth Circuit, striking down pre-viability bans in that state and in North Dakota, and the Court on Tuesday called for a response to the Arkansas petition.  The Eighth Circuit, in both of those rulings, sharply questioned the continued workability of the viability standard even as it felt compelled to apply it in the two cases.

Under Supreme Court procedures, a single Justice can ask for a response to a petition when the other side has waived that right, as two Arkansas doctors and their patients did in that case.  Thus, it is far from clear that the minimum number of Justices — four — would vote to hear a case in which a response had been sought.  The main significance of such a request initially is that the case would not automatically be denied when the Court first looked at it without asking the other side to file a brief.

Arkansas had banned abortions after the twelfth week of pregnancy even though viability is generally understood to occur at about the twenty-fourth week. North Dakota had banned abortions as soon as a fetal heartbeat could be detected — deemed to be at about six weeks into pregnancy.

When the Supreme Court in 1992 decided Planned Parenthood of Southeast Pennsylvania v. Casey, it reaffirmed much of Roe v. Wade — including the viability formulation.

In the new Arkansas case, the first question raised is whether the Court should “reconsider and overrule . . . the viability rule” from those two precedents.  The other two questions involved other parts of the Arkansas abortion law that the state contended would help to protect a woman’s choice about terminating her pregnancy.  One is a series of exceptions to the ban at twelve weeks, the other is a right for a women to give up a child at birth “without consequence.”

State officials argued that the Court’s abortion precedents established two “foundational principles,” and argued that its twelve-week ban did not pose a challenge to either.  One was the Court’s recognition of a state’s interest in protecting the life of the unborn, and the other is the “constitutional liberty of the woman to have some freedom to terminate her pregnancy.”

As written, the state asserted, the first principle is honored, and the second is served by exceptions to the ban and the unchallenged right of a mother to give up an “unwanted” child at birth.

“Unfortunately,” the petition argued, “this Court’s current abortion jurisprudence not only elevates the arbitrary line of viability to constitutional significance, but also prohibits the states from contributing to the determination of when viability occurs.”

In the Arkansas case, the Eighth Circuit had criticized the viability line and said that lawyers for a state defending an abortion law had a special duty to put before a court the latest in fetal medicine findings, especially on whether a fetus can survive at an earlier point than twenty-four weeks.

When it decided the North Dakota case, involving the strictest ban enacted in any state, the Eighth Circuit commented flatly that the viability line had become “unsatisfactory” because it had not kept pace with developments in fetal medicine.  North Dakota’s lawyers in that case had strongly disputed the viability point.

State officials in North Dakota said last month that they expected to file their own appeal to the Supreme Court sometime this month.  They have until November 30 to do so.

The Court will take no action on the Arkansas case until lawyers for the doctors and patients have a chance to file their response.


Recommended Citation: Lyle Denniston, Is a key to Roe v. Wade open to question?, SCOTUSblog (Nov. 12, 2015, 12:24 PM),