States have been trying to regulate abortion rights out of existence since the Supreme Court first recognized them in Roe v. Wade. So far, fetal viability has been the one immovable legal fixture holding those attempts back. Not even the anti-choice majority on the Roberts Court has been willing to revisit the rule that up to fetal viability, the fundamental constitutional right to terminate a pregnancy belongs to the pregnant person. But all that could change this term.
Attorneys for the State of Arkansas filed a petition Tuesday with the Roberts Court urging it to step in and uphold an Arkansas law that bans abortions at 12 weeks’ gestation. Act 301, the “Arkansas Heartbeat Protection Act,” outlaws abortion when a fetal heartbeat has been detected—which can be as early as six weeks’ gestation—and at 12 weeks, with narrow exceptions for the life of the pregnant person, cases of rape or incest, and those that involve a “lethal fetal disorder.” The law, considered to be among the most radically restrictive in the nation, has been blocked by a federal judge since March 2014.
Attorneys for the State of Arkansas argued at both the trial court and appellate level that even though the law, if enacted, would outlaw nearly all abortions after 12 weeks’ gestation, Act 301 was not an unconstitutional pre-viability ban. Instead, because of the narrow exceptions within the act, attorneys said the ban was merely a regulation on the abortion procedure. A three-judge panel on the Eighth Circuit rejected that argument, but not because the judges disagreed with the Arkansas attorneys. Rather, the judges felt their hands were tied by Supreme Court precedents like Roe v. Wade and Planned Parenthood v. Casey, which prevent states from banning abortions prior to viability. They used the appellate opinion as a call on the Supreme Court to rethink its abortion rights jurisprudence.
With that opening, attorneys for the State of Arkansas jumped to action.
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“Just as Casey reevaluated the wisdom and constitutional necessity of the rigid trimester framework imposed by the Court in Roe,” the Arkansas Attorney General’s Office brief states, referring to the fact that Casey’s viability rule replaced Roe‘s structure for evaluating when abortion restrictions early in pregnancy are constitutional, “it is now time for the Court to reevaluate the rigid viability rule imposed in Casey.”
That “rigid viability rule” of Casey is the portion of the decision in which the Court re-affirmed the essential holding of Roe v. Wade: that patients have the right to choose to have an abortion prior to viability without undue interference from the state. The fetal viability rule is a problematic one for reproductive rights advocates. Viability is not a fixed medical standard and can vary from pregnancy to pregnancy. As technology advances allow prematurely born infants to survive outside the womb earlier in pregnancy, fetal viability’s continued use as a fixed legal standard to judge the constitutionality of abortion restrictions means pregnant people will see the window of time to access legal abortion continue to shrink. On the other hand, it has proven to be the only bright-line abortion rights rule preventing the most draconian restrictions—like Arkansas Act 301—from becoming law.
Clearly, states have already created plenty of interference with the right to terminate a pregnancy prior to viability. Nearly every kind of restriction—clinic closure laws, procedure bans, regulations on medication abortions, the Hyde Amendment, the list goes on—interferes with that right. So what Arkansas is really talking about here is the idea that until the fetus has reached viability, the liberty of the pregnant person outweighs the power of the state to regulate that pregnancy to the point of making accessing abortion care an explicit impossibility.
Put yet another way: The State of Arkansas wants the Roberts Court to overturn Roe v. Wade while pretending it’s not overturning Roe v. Wade.
That’s a big ask of the Roberts Court, which is why attorneys for the State of Arkansas frame their request as an incremental one. This case, they argue, is not a challenge to the “foundational” principles of abortion rights jurisprudence. Nor are they attacking the fundamental right of reproductive privacy by asking for unfettered state power to regulate, and even ban, abortion at any stage of pregnancy. Rather, this is a case about “the impropriety of a judicially-imposed rule,” one they argue is “free from any serious constitutional mooring” and “sets in stone ‘viability’ as the point before which the State’s profound interests must give way to a woman’s desire to terminate her pregnancy.”
In fact, the attorneys argue in their brief, the State of Arkansas sees this as an opportunity for the Court to explain just why fetal viability has been a legal standard for the past four decades.
“The Court has never explained why viability is an important milestone from a pregnant woman’s perspective – at least with respect to her having ‘some freedom to terminate her pregnancy,’” the brief states.
I’m going to go out on a limb here and say one of the reasons why the Court has never explained the relationship between pregnancy and the pregnant person, or the importance of viability both medically and legally, is because it has never had a majority of its justices personally experience a pregnancy, wanted or not, carried to term or not.
But just like clinic closure laws are not really about advancing patient safety, the State of Arkansas is not really looking for the Court to explain the nature of pregnancy. Instead, it wants the Court to confirm the power of the government to regulate it.
“The Court has also never explained why a viability rule should override the State’s profound interest in restricting abortions prior to viability in order to protect the lives of unborn children,” the brief continues. “The Court has never sufficiently explained, for example, why a woman’s right to choose to terminate her pregnancy is paramount until a fetus reaches viability, despite the Court’s recognition that the State’s interest in protecting the life of the fetus begins at the outset of pregnancy, when the life of the fetus begins.”
If you ever questioned the idea that restricting legal abortion is about anything other than the power of the state to regulate women’s lives, I invite you to reread that paragraph again. At no point does the state recognize a pregnant person’s own agency, let alone their humanity.
There’s also the practical question of what legal standard would replace fetal viability if the Roberts Court bought Arkansas’ arguments and revisited it. As problematic as the viability standard may be, courts as institutions are just not going to yank one rule without replacing it with another. Here, attorneys for the State of Arkansas have an answer. And it is truly terrifying.
“A State should be allowed to advance its profound interests in protecting the life of the unborn child, protecting the health of the mother, and upholding the integrity of the medical profession by enforcing a restriction on abortion prior to viability especially where, as here, a woman is given a reasonable amount of time to terminate her pregnancy and the State provides a safe haven statute allowing a woman to abandon an unwanted child carried to term,” the brief states.
“By overruling the viability rule, the Court can protect the individual liberty interest declared in Roe and Casey while simultaneously affording states the latitude to protect their profound interests.”
That’s right. Only by overturning the cornerstone of women’s liberty interests can we protect them. And we will use a judicial standard of “reasonableness” by which to measure abortion restrictions. You thought the “undue burden” standard for what makes an abortion restriction unconstitutional was effectively meaningless? Imagine the decisions from the Fifth Circuit on a “reasonable” amount of time to terminate a pregnancy.
And when a woman misses her window of “reasonableness,” the attorneys are offering safe haven laws as a legitimate alternative—one of the most brazen and radical arguments in favor of Arkansas’ restriction. They’re claiming that through these laws, the state has completely taken on the burden of an unwanted pregnancy, rendering the need for legal abortion care irrelevant.
Safe haven laws provide a window of time—30 days, in Arkansas’ case—in which a person can surrender their newborn to the state without facing criminal prosecution. And because every state and the District of Columbia has some form of a safe haven statute, attorneys for the State of Arkansas argue the time has come to grant states the power to re-criminalize abortion. “By allowing any woman to abandon an unwanted child without consequence, the State of Arkansas completely assumes a pregnant woman’s burden of unwanted parenthood and child care,” the brief states.
“Accordingly, even if abortions were prohibited in Arkansas, no pregnant woman would be forced to endure the burdens of “additional offspring” and “a distressful life and future[,]” or mental and physical health “taxed by child care[,]” or general distress associated with an “unwanted child,” or “the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it,” the brief continues. “The safe haven statute completely eliminates the pregnant woman’s burden of parenthood.”
Let’s be very clear here about what the State of Arkansas is advancing here. In 2014 the state had over 7,500 children in its foster care system. Eleven percent of children in Arkansas live in extreme poverty. The National Women’s Law Center ranked Arkansas near the very bottom for positive health indicators for pregnant women, with about a fifth of them receiving no prenatal care in the first trimester. Almost 80 percent of Arkansas women live in a county with no abortion clinic, and the state is in the middle of trying to cut off Medicaid funding to the Planned Parenthood health-care facilities in the state. And remember the case of Rep. Justin Harris (R-West Fork), who “rehomed” two adopted daughters into another family where one of them was sexually abused? That scandal helped draw attention to the myriad of problems, from underfunding to racial disparities in placements and adoptions, plaguing the Arkansas Department of Human Services. Clearly, the state is not equipped to handle the “burden” of parenthood.
We will not know for months if the Roberts Court agrees to take the Arkansas case. And assuming the Court takes up Whole Woman’s Health v. Cole, the fight over clinic closure laws and the undue burden standard, it is not at all clear whether the Court will be interested in having multiple abortion-rights cases on its docket in one term, especially after mostly avoiding the subject since 2007. It’s entirely clear, however, that conservatives plan to keep trying to erode abortion rights all the way through the 2016 election, providing a steady drumbeat of anti-Planned Parenthood, anti-choice propaganda for the Court’s deliberation.