Constitutional Law

8th Circuit strikes down strict abortion law but questions fetal viability standard

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A federal appeals court has questioned the Supreme Court’s abortion standards while striking down a strict North Dakota abortion law that generally banned abortions as soon as a fetal heartbeat is detected.

The St. Louis-based 8th U.S. Circuit Court of Appeals said it was bound by Supreme Court precedent in striking down the law, deemed “the earliest and most extreme abortion ban in the nation” by the Center for Reproductive Rights. The law would have banned abortions as early as six weeks into the pregnancy.

The appellate panel opined, however, that “good reasons exist for the [Supreme] Court to re-evaluate its jurisprudence,” which holds that states can’t ban abortions before a fetus is viable. Publications covering the decision include SCOTUSblog and Slate. How Appealing links to the July 22 decision (PDF).

Slate’s Dahlia Lithwick calls the opinion “astonishing” and says it is “sort of paean to states’ rights and to bad science.”

According to the 8th Circuit, the Supreme Court viability standard “has tied a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn. This leads to troubling consequences for states seeking to protect unborn children.”

Because of developments in obstetrics, a 24-week-old fetus that wasn’t viable and had no protection in the 1970s would be viable and protectable today, the court said. Viability generally occurred at 28 weeks in 1973, compared to 24 weeks today, the decision said.

“How it is consistent with a state’s interest in protecting unborn children that the same fetus would be deserving of state protection in one year but undeserving of state protection in another is not clear,” the court said. “This choice is better left to the states, which might find their interest in protecting unborn children better served by a more consistent and certain marker than viability.”

Citing an Alabama Supreme Court concurring decision, the 8th Circuit said scientific advances show a fetus experiences pain earlier than believed when the U.S. Supreme Court decided Roe v. Wade. The 8th Circuit also cited declarations from women who have had abortions who said they had health and emotional problems as a result.

The abortion issue is likely to return to the court next term, SCOTUSblog reports. Currently pending are cert petitions in cases from Mississippi and Texas involving state regulation of abortion clinics and doctors.

The North Dakota case is MKB Management Corp. v. Stenehjem.

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