A U.S. District Court of Appeals has encouraged the Supreme Court to redefine the standard by which states have the authority to limit abortion.
Now that authority is defined by whether or not a baby can live outside a mother’s womb. The Eighth Circuit suggests that in light of modern science, the high court should limit abortions where the unborn child possesses a heartbeat.
The Eighth Circuit wrote that state legislatures, not judicial bodies, should determine medical science as it relates to when an abortion is allowed and questioned using a “fetal viability analysis” because of modern medical advances. The U.S. Supreme Court has ruled that a child cannot live outside of the womb before 24 weeks.
The photo above shows an ultrasound and fetal heartbeat monitor of a six-week, six-day-old, unborn child.
Located in American’s heartland in St. Louis, Missouri, the panel of judges wrote that the issue before it was “whether, given the current state of medical science, a state generally may prohibit physicians from aborting unborn children who possess detectable heartbeats.”
The North Dakota statute at issue in the case reads as one of the most protective of fetal life in the country.
In 2013, the legislature in North Dakota passed House Bill 1456 which extended the general prohibition on abortion (prior to “viability”) to the point where the unborn child has a detectable heartbeat.
The statute contains exceptions for the life or health of the pregnant woman and for the life of another unborn child. A physician who violates this statute commits a felony.
The sole abortion provider in N. Dakota filed suit, and the attorney general represented the state in defending the constitutionality of the statute.
The plaintiff abortion providers submitted evidence that a fetal heart beat can be detected at about 6 weeks but a fetus is not viable until about 24 weeks.
The state submitted evidence that a child’s heartbeat is detectable by about 6 to 8 weeks. Further, an unborn child is viable from conception because in vitro fertilization allows an embryonic unborn child to live outside the womb for two to six days after conception. This has been commonly referred to as “test tube babies.”
The Eighth Circuit reluctantly held, “Because United States Supreme Court precedent does not permit us to reach a contrary result,” we affirm the decision of the lower court.
The district court in this case found that a state may not prohibit abortions where there is a detectable heartbeat because “[a] woman’s constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court for more than forty years since Roe v. Wade.”
The 1973 Supreme Court decision of Roe v. Wade held that a state cannot prohibit an abortion in the first two trimesters of pregnancy.
By 1992, a plurality opinion of the Supreme Court in the Casey case had rejected the trimester test because it failed to “fulfill Roe’s own promise that the State has an interest in protecting fetal life or potential life.” The trimester framework was replaced with the undue burden analysis. In other words, a state may promote its interest in protecting life by prohibiting abortion before viability if a state statute’s “purpose or effect is [not] to place a substantial obstacle in the path of a woman seeking an abortion.”
The North Dakota statute prohibits abortions after six weeks because the parties did not dispute that fetal heartbeats are detectable at that point in pregnancy.
Supreme Court precedent provides that states may not prevent abortions before fetal viability outside of the womb, and has opined that viability is at 24 weeks.
The Eighth Circuit noted that attorneys for North Dakota submitted a different definition of viability than the one used by either the Supreme Court or the medical community.
The abortion provider plaintiffs argued that the North Dakota statute unduly burdened women who were trying to obtain an abortion and obtained an injunction from the district court stopping the enforcement of the statute.
In evaluating a recent Supreme Court abortion decision, the Eighth Circuit wrote that the higher court may be willing to reevaluate its abortion holdings.
The Court also wrote that “good reasons exist for the [Supreme] Court to reevaluate its jurisprudence.”
First, “the Court’s viability standard has proven unsatisfactory because it gives too little consideration to the ‘substantial state interest in potential life throughout pregnancy.’”
The Court also wrote that although states in the 1970s lacked the power to ban an abortion of a 24-week-old-fetus because that fetus would not have been viable, today that same fetus would be viable and states could restrict that abortion.
Second, “[The Supreme] Court has tied a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn.” The Court continued, “This leads to troubling consequences for states seeking to protect unborn children.”
The Eighth Circuit noted that the Supreme Court has said there are “logical and biological justifications” for choosing viability as the critical point.” The Missouri panel continued, “But 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.”
The federal intermediate appellate court opined that courts should not “substitute its own preference to that of the legislature” because such “is not the proper role of a court.” The Court wrote that “the [Supreme] Court has also removed the states’ ability to account for ‘advances in medical and scientific technology [that] have greatly expanded our knowledge of prenatal life.'”
Medical and scientific advances show that the concept of viability is subject to change, and the Supreme Court has already acknowledged that viability continues to occur earlier in pregnancy, the Court opined.
The appellate court noted, “As IVF [in vitro fertilization] and similar technologies improve, we can reasonably expect the amount of time an ’embryonic unborn child’ may survive outside the womb will only increase. The viability standard will prove even less workable in the future.”
The Court wrote, “In short, the continued application of the Supreme Court’s viability standard discounts the legislative branch’s recognized interest in protecting unborn children.”
The attorney general from North Dakota may appeal the Eighth Circuit’s opinion to a panel of the entire court (“en banc”), or may appeal to the U.S. Supreme Court.
When the Supreme Court takes up its new term later this year, there are already other cases from Texas and other jurisdictions which could possibly limit a state’s ability to limit abortions based on new medical standards. Whether fetal heartbeat can be used as a standard to deny an abortion, is yet to be seen.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. Follow her on Twitter @LanaShadwick2