The opinion of the Eighth Circuit on North Dakota’s ban on abortions after the detection of a fetal heartbeat is interesting. Basically, the court is saying that its hands were tied by an outdated and flawed Supreme Court standard.
In Roe v. Wade, the Supreme Court created a trimester standard for determining when states could restrict or regulate abortion. It prohibited states from restricting abortion “to protect potential life” during the first two trimesters. In Casey v. Planned Parenthood, the Supreme Court threw out the trimester standard for a pre-viability/post-viability standard. Under this standard, government could act to protect “potential life” before viability so long as the law did not pose an “undue burden” on the woman seeking an abortion. Bans on abortion before viability would be struck down. “Viability” was defined as when there exists a “realistic possibility of maintaining and nourishing a life outside the womb.”
It shouldn’t take much thinking to identify the problem with the viability standard. The legal question that the court was supposed to answer is: when does the state’s interest in protecting unborn life kick in? In other words, when is the “potential life” so much “a life” that it deserves protection? Putting aside for now the flaws in the question itself, the answer does not match the question. The answer, according to the Court, is viability. Viability, however, tells us nothing about the development of the unborn child. It only tells us about the technologies available at a particular place and time. Nevertheless, courts have been mostly unwilling to point out this flaw in the viability standard. Until now.
[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]Nevertheless, courts have been mostly unwilling to point out this flaw in the viability standard. Until now.[/mks_pullquote]
That the North Dakota statute banned some abortions before viability – as the Supreme Court has defined that term – was not really in dispute. The District Court and the Eighth Circuit on appeal had little choice in the matter. The Eighth Circuit, however, devoted a significant portion of its opinion laying out the errors of the Supreme Court’s viability standard.
The Eighth Circuit begins the third section of its opinion with: “Although controlling Supreme Court precedent dictates the outcome in this case, good reasons exist for the Court to reevaluate its jurisprudence.”
It goes on:
“To begin, the Court’s viability standard has proven unsatisfactory because it gives too little consideration to the “substantial state interest in potential life throughout pregnancy.” Casey, 505 U.S. at 876 (plurality opinion). By deeming viability “the point at which the balance of interests tips,” id. at 861, the Court 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.”
The court also notes that changes in medicine make an unborn child viable who would not have been viable a year before. “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,” states the court.
The court then notes that the states, not courts, are better suited to respond to medical and technological advances regarding prenatal life.
What is really surprising is that the court goes even further, suggesting that the very foundations that formed the basis of Roe have changed. The court notes thatRoe assumed that abortion had no negative effect on women, but that more recent evidence suggests the contrary. It also points out the Roe assumed that every child not aborted would be an unwanted child. The Eighth Circuit opinion suggests that laws like “infant drop-off” undermine that assumption.
It is doubtful that the current U.S. Supreme Court would change its views on viability. It recently denied a request to consider a 20 week ban. Whether North Dakota should seek a Supreme Court review might not be a good idea at this time.
That does not mean that North Dakota’s post-heartbeat ban was a wasted effort. Legal jurisprudence happens in little spurts. Before the Supreme Court changes its views, lower courts, law reviews, and legislators often lay the groundwork, testing ideas, and exposing weaknesses and errors in Supreme Court opinions. The Eighth Circuit’s opinion in the heartbeat ban case may be one of those groundwork events. If anything, it has revealed the fundamental flaw of the Supreme Court’s abortion jurisprudence.