The issue of viability took center stage Tuesday as a federal appellate panel heard arguments for and against an Arkansas law banning most abortions after 12 weeks of pregnancy if a fetal heartbeat is detected.
The law, Act 301 of 2013, was declared unconstitutional on March 14, 2014, by U.S. District Judge Susan Webber Wright, prompting the state's appeal to the 8th U.S. Circuit Court of Appeals in St. Louis.
During oral arguments in St. Louis on Tuesday, a three-judge panel, consisting of two judges from Arkansas and one from Des Moines, Iowa, asked several questions about the attorneys' interpretation of U.S. Supreme Court holdings made since the Roe v. Wade decision of 1973. It established a woman's right, under the Due Process clause of the 14th Amendment, to have an abortion until the fetus is viable, or capable of living independently outside the womb.
Although Roe left it up to individual states to determine when viability occurs, the age of viability has generally been considered to be around 24 or 25 weeks of pregnancy. Until Act 301 was passed, Arkansas had deemed viability to occur at 25 weeks. Act 301, also known as the Fetal Heartbeat Protection Act, sought to change state law to define viability as "a medical condition that begins with a detectable heartbeat."
Until Wright's order, Act 301 was to take effect in August 2013.
In finding the 12-week ban on abortions "clearly unconstitutional," Wright said it contradicted the Roe ruling. But she kept intact two other sections of the law that she said could stand on their own. They require women seeking an abortion in Arkansas to undergo an abdominal ultrasound to check for a fetal heartbeat and, if a heartbeat is detected, require a doctor to inform the woman in writing and give her a statistical probability for bringing the fetus to term if it isn't aborted.
Wright's ruling on those two sections of the law hasn't been appealed.
The plaintiffs who challenged the law are Drs. Louis Jerry Edwards and Tom Tvedten, who faced having their medical licenses revoked for performing abortions for women at or after 12 weeks of pregnancy. The ban applied except in cases of a medical emergency, when necessary to protect the mother's life or in the event of a "highly lethal fetal disorder."
Assistant Attorney General Colin Jorgensen argued Tuesday that "standards have changed dramatically" since the Roe decision, with one of those subsequent cases, Planned Parenthood of Southeastern Pennsylvania v. Casey, decided in 1992, making it "clear that states can regulate abortions prior to viability."
Jorgensen said the Casey ruling "also diminished viability standards."
The Casey court cited Roe in defining viability as "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection." It held that after a fetus becomes viable, the state's interest in protecting its potential life can, in some circumstances, be compelling enough to outweigh the woman's right to an abortion.
Wright's ruling said Casey "reaffirmed the fundamental holdings of Roe" while noting that the line of viability could come earlier with advances in neonatal care.
Susan Talcott Camp, arguing on behalf of the Arkansas plaintiffs, contended that "what's quite clear under Roe, Casey and Gonzales is that at no point before viability can a state impose a ban, as Arkansas has done."
The latter case, Gonzales v. Carhart, was decided in 2007. It upheld a federal prohibition on only one type of abortion procedure, known as a "partial-birth abortion."
Jorgensen said Gonzales was the first case in which the Supreme Court referred to a fetus as a "human life," which he said "elevates the state's interest in protecting that right dramatically."
Camp noted that Dr. Janet Cathey, a Little Rock gynecologist, said in an affidavit in the plaintiffs' case that "viability is not possible until around 24 weeks." She said Cathey defined viability in the same way as the Supreme Court has -- as "having a reasonable likelihood of sustained survival."
U.S. Circuit Judge Steven Colloton, a member of the panel along with U.S. Circuit Judges Lavenski Smith of Little Rock and Bobby Shepherd of El Dorado, asked Camp, "How long is sustained survival? ... A few hours? A few days?"
Camp replied that the Supreme Court hasn't answered that question.
Shepherd noted that in the next case before the panel Tuesday -- an appeal of a ruling outlawing North Dakota's ban on abortions after six weeks of pregnancy -- the state contends that viability begins at conception because with in vitro fertilization, a fertilized egg can survive six days before being implanted in a uterus.
Camp responded that in the Arkansas case, there was no question that the law took away 14th Amendment rights before viability.
"My colleague is incorrect to assert that any case, including Gonzales, diminishes the importance of viability," she said. She later added that despite some "rhetoric" in the Gonzales ruling, "Gonzales' holding is consistent with Casey's viability line. As far as the viability line, there is no light between Casey and Gonzales."
Jorgensen responded, "I respectfully disagree that the viability standard has not diminished." He said Supreme Court rulings in cases pitting a woman's right to abortion against a state's interest in protecting human life "make it clear that the viability standard cannot be the end of the discussion anymore, even with a law that would ban abortions prior to viability."
Other than Cathey's statement, he said, the plaintiffs presented no proof that under Act 301, any woman in Arkansas would be unable to obtain a pre-viability abortion. He also argued, "There's no reason why, if this law were in effect, women could not ... simply make their choice earlier and have their abortion in the first trimester" of their pregnancy. He also noted, "If there's no fetal heartbeat, there's no ban."
In a friend-of-the-court brief filed in July on behalf of the plaintiffs by the Physicians for Reproductive Health and the National Abortion Federation, attorney Claude G. Szyfer of New York wrote, "While conclusions about the precise threshold of viability vary somewhat across medical studies, and while advances in medical research, maternal care and neonatal conditions have improved outcomes of some extremely premature births in the 40 years since Roe was decided, no study has ever concluded that this threshold lies at or anywhere near twelve weeks."
The brief says that despite the exceptions in Act 301, the ban "imperils the health and safety of those women for whom pregnancy at or after twelve weeks poses a serious health risk, but who do not qualify for an abortion under the statutory exceptions. Many medical conditions that develop during, or are aggravated by, pregnancy do not manifest themselves until or after the point in a pregnancy at which Act 301 bans abortion. While these conditions may not qualify as 'medical emergencies,' they can nonetheless subject a pregnant woman to intolerable health risks, discomfort or pain."
It cites hypertension, valvular disease and systemic lupus erythematosus, an autoimmune disease, as examples of serious long-term problems a pregnant woman can develop if not allowed to have an abortion.
It also notes, "Delaying an abortion until the patient's health has deteriorated to the point of crisis is inconsistent with the ethical code to which all physicians are bound, and potentially leaves the physician subject to claims of civil liability for medical negligence."
Metro on 01/14/2015