Analysis Law and Policy

Fetal Viability and 20-Week Bans: A Constitutional ‘Bright Line’ for Abortion Restrictions

Jessica Mason Pieklo

The battle over Arizona's 20-week abortion ban re-affirms a fundamental right to choose abortion, but by embracing fetal viability as a legal cut-off point is the court just making matters worse?

As Arizona’s 20-week abortion ban made its way through the legislature and during its initial legal challenge, defenders of the bill made it clear that the measure, which banned all abortions beyond 20 weeks’ gestation and made little exception for the life of the mother, was designed to do more than just severely restrict abortion access in the state. It was designed to fire the most direct shot at Roe v. Wade yet.

That point was not lost on a panel of judges for the Ninth Circuit Court of Appeals, who answered lawmakers’ challenge to reconsider whether, under any circumstances, states can ban abortions pre-viability with a resounding “no.” But the panel went one step further in its opinion by not simply rebuking U.S. District Judge James A. Teilborg for a decision to uphold a law that it deemed “patently unconstitutional,” but by practically daring the state of Arizona to push its defense of the bill further.

The 44-page opinion lays out, in plain and clear terms, nearly four decades of case law that share a common, unmistakeable feature: an embrace of the legal truth that any law that bans abortions pre-viability is per se unconstitutional. Citing case after case, the Ninth Circuit’s opinion details how states may regulate the mode and manner of abortion care prior to fetal viability but may not, under any circumstances, proscribe a woman from electing abortion, nor impose an undue burden on her choice by regulating that procedure out of existence.

Take note, Republicans.

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Piece-by-piece the Ninth Circuit panel picked apart the test balloon of legal challenges to the Roe viability standard. First the justices sharply criticized Judge Teilborg’s decision to take a motion for a preliminary injunction and, without notice to the parties, convert it to a challenge to the entire merits of the law. This procedural move was nothing short of total judicial activism and enabled Teilborg to reach some of his more outlandish constitutional analysis, despite the fact that the there was a scant record of evidence before it.

Were the factual record or the district court’s factual findings of pertinence to our decision, we would be troubled by the procedure followed. But neither party has challenged the district court’s approach. And because we ultimately agree with the Physicians that this case if fully controlled by binding precedent, the truncated nature of the record does not matter to our decision. We therefore do not consider this procedural matter further.

Once the judges dispensed of the procedural issues, they turned their attention to the heart of Teilborg’s analysis, which was that the Arizona law was not a ban on abortions but simply a very strenuous regulation. At the district court, Judge Teilborg had differentiated between a “ban” and a “regulation” like this: Because the law contains a health exception that allows for some abortions to take place post-20 weeks, it does not ban all abortion pre-viability. Furthermore, when considered as a regulation and not a prohibition the law may force some women to make the decision to terminate their pregnancy earlier, but it doesn’t strip them of the ability to choose to terminate their pregnancies before 20 weeks and is therefore nothing more than a “time limitation” on their right to terminate pre-viability. Given that, as Judge Teilborg reasoned, the state has a legitimate interest in fetal life and promoting the health of pregnant women, this time limitation was not a substantial obstacle to exercising that right and the law was, therefore, constitutional.

Attorneys for the state of Arizona teed up Teilborg’s analysis by arguing that the viability standard set out in Roe and re-affirmed for the next 40 years was simply dicta, or the legal equivalent of blowing smoke. That characterization, the Ninth Circuit panel concluded was “most certainly incorrect.”

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. Indeed, such trends led Justice O’Connor to remark, prior to Casey, that “the Roe framework….is on a collision course with itself.” 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 at the point at which the balance of interest tips.”

It’s that full-forced defense of viability as the cut-off point for when the state can ban abortion that is the most important, because, as the Arizona case illustrates, a key component of the legal argument challenging Roe is to find a way to either abandon viability altogether or replace it with something else, like “fetal pain.” And as the Arizona case also illustrates, at least one sitting federal judge was willing to bite and do so.

Fetal viability as the earliest point when states can legally ban most abortions is an imperfect standard at best, but it is one that has provided the most legal shelter from efforts to overturn Roe. The Ninth Circuit, in forcefully re-affirming that standard, also forcefully re-affirmed the idea that a woman’s body is not de facto property of the state once she becomes pregnant. And given the comments made by lawmakers and anti-abortion activists, it’s critically important to have that idea re-affirmed. But it’s also worth asking whether or not, as technology advances, who is best served by embracing a standard that continues to recognize the right to terminate a pregnancy in relation to the rights of the state and developing fetus.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

News Abortion

Study: United States a ‘Stark Outlier’ in Countries With Legal Abortion, Thanks to Hyde Amendment

Nicole Knight Shine

The study's lead author said the United States' public-funding restriction makes it a "stark outlier among countries where abortion is legal—especially among high-income nations."

The vast majority of countries pay for abortion care, making the United States a global outlier and putting it on par with the former Soviet republic of Kyrgyzstan and a handful of Balkan States, a new study in the journal Contraception finds.

A team of researchers conducted two rounds of surveys between 2011 and 2014 in 80 countries where abortion care is legal. They found that 59 countries, or 74 percent of those surveyed, either fully or partially cover terminations using public funding. The United States was one of only ten countries that limits federal funding for abortion care to exceptional cases, such as rape, incest, or life endangerment.

Among the 40 “high-income” countries included in the survey, 31 provided full or partial funding for abortion care—something the United States does not do.

Dr. Daniel Grossman, lead author and director of Advancing New Standards in Reproductive Health (ANSIRH) at the University of California (UC) San Francisco, said in a statement announcing the findings that this country’s public-funding restriction makes it a “stark outlier among countries where abortion is legal—especially among high-income nations.”

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The researchers call on policymakers to make affordable health care a priority.

The federal Hyde Amendment (first passed in 1976 and reauthorized every year thereafter) bans the use of federal dollars for abortion care, except for cases of rape, incest, or life endangerment. Seventeen states, as the researchers note, bridge this gap by spending state money on terminations for low-income residents. Of the 14.1 million women enrolled in Medicaid, fewer than half, or 6.7 million, live in states that cover abortion services with state funds.

This funding gap delays abortion care for some people with limited means, who need time to raise money for the procedure, researchers note.

As Jamila Taylor and Yamani Hernandez wrote last year for Rewire, “We have heard first-person accounts of low-income women selling their belongings, going hungry for weeks as they save up their grocery money, or risking eviction by using their rent money to pay for an abortion, because of the Hyde Amendment.”

Public insurance coverage of abortion remains controversial in the United States despite “evidence that cost may create a barrier to access,” the authors observe.

“Women in the US, including those with low incomes, should have access to the highest quality of care, including the full range of reproductive health services,” Grossman said in the statement. “This research indicates there is a global consensus that abortion care should be covered like other health care.”

Earlier research indicated that U.S. women attempting to self-induce abortion cited high cost as a reason.

The team of ANSIRH researchers and Ibis Reproductive Health uncovered a bit of good news, finding that some countries are loosening abortion laws and paying for the procedures.

“Uruguay, as well as Mexico City,” as co-author Kate Grindlay from Ibis Reproductive Health noted in a press release, “legalized abortion in the first trimester in the past decade, and in both cases the service is available free of charge in public hospitals or covered by national insurance.”