Reviewing Recently Enacted State Abortion Laws and Resulting Litigation

Reviewing Recently Enacted State Abortion Laws and Resulting Litigation

Legal Sidebari

Reviewing Recently Enacted State Abortion
Laws and Resulting Litigation
September 6, 2019
Since the start of 2019, at least 11 states have enacted new laws regulating abortions based on a fetus’s
gestational age, the detection of a fetal heartbeat, or specified fetal characteristics, such as a diagnosis of
Down syndrome. Some of these states have also imposed restrictions on the dilation and evacuation
abortion method, the most common surgical abortion method performed during the second trimester of
pregnancy. Notably, these 11 states are seeking to curtail the availability of abortion notwithstanding case
law from various federal appellate courts that invalidated similar state laws in the past. This flurry of
legislative activity may be motivated in part to have the Supreme Court reconsider its past abortion
decisions. As the state’s governor recently remarked upon signing the Alabama Human Life Protection
Act, “it is time, once again, for the U.S. Supreme Court to revisit this important matter[.]” While it
remains to be seen whether the Supreme Court will take up this invitation, this Sidebar reviews the newly
enacted state laws, discusses how courts have examined similar abortion regulations in the past, and
addresses the implications of this changing legislative landscape for Congress.
Background
Since Roe v. Wade, the Supreme Court has recognized viability as the earliest point at which a state’s
interest in fetal life may allow for an outright prohibition on the performance of an abortion. In Roe, the
Court described viability as the point in fetal development when the fetus is able to live outside of the
mother’s womb, with or without artificial assistance. The Court indicated that viability “is usually placed
at about seven months (28 weeks) but may occur earlier, even at 24 weeks.”
In 1992, a plurality of the Court upheld Roe’s essential holding in Planned Parenthood of Southeastern
Pennsylvania v. Casey, emphasizing in part that a state may not prohibit a woman “from making the
ultimate decision to terminate her pregnancy before viability.” At the same time, however, the plurality
recognized that the state has legitimate interests from the outset of a woman’s pregnancy in protecting the
health of the woman and the life of the fetus. To effectuate these interests, the plurality determined that
the state may enact pre-viability abortion regulations so long as they do not place an undue burden on a
woman’s ability to obtain an abortion. Under Roe, such regulations would have been unconstitutional.
The plurality explained that an undue burden exists if the purpose or effect of an abortion regulation is “to
place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
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Nonetheless, the Casey Court recognized that prior to viability “the State’s interests are not strong enough
to support a prohibition of abortion.”
Courts continue to evaluate abortion regulations under the principles established in Casey. In practice,
courts applying the undue burden standard balance the burdens and benefits imposed by such regulations.
Applying the undue burden standard in 2007, the Supreme Court upheld the federal Partial-Birth Abortion
Ban Act, which prohibits an abortion method involving the delivery of a substantial portion of the fetus.
More recently, in Whole Woman’s Health v. Hellerstedt, the Court determined that two Texas
requirements – that physicians who perform abortions have admitting privileges at a nearby hospital and
abortion facilities satisfy the same architectural and operational standards as ambulatory surgical centers –
imposed an undue burden on the availability of abortion.
Abortion Restrictions Based on Gestational Age or Fetal Heartbeat Detection
The new state laws that restrict the performance of an abortion based on a fetus’s gestational age wholly
prohibit the procedure at various points in fetal development. For instance, laws in Arkansas and Utah ban
the procedure once the fetus reaches a gestational age of 18 weeks, and Missouri prohibits the procedure
once the fetus attains a gestational age of eight weeks. In addition, new laws in Georgia, Kentucky,
Louisiana, Mississippi, and Ohio ban the performance of an abortion once a fetal heartbeat can be
detected, which may occur once a fetus reaches a gestational age of six weeks. Finally, in the most far
reaching of the new state abortion laws, Alabama’s new law prohibits the practice for “an unborn child in
utero at any stage of development.”
Beginning in 2013, the U.S. Courts of Appeals for the Eighth and Ninth Circuits have respectively
invalidated state laws in Arizona, Arkansas, Idaho, and North Dakota prohibiting the performance of an
abortion once a fetus reached a gestational age younger than 24 weeks. In their decisions, the two
appellate courts have cited the Casey plurality’s determination that a state may not prohibit a woman from
having an abortion before a fetus attains viability. For example, in Edwards v. Beck, the Eighth Circuit
reviewed the Arkansas Human Heartbeat Protection Act, which prohibited abortions once the fetus had a
detectable heartbeat and was at least a gestational age of 12 weeks. The Arkansas State Medical Board
defended the law, characterizing the restriction as a regulation and not a ban on pre-viability abortions.
The Board emphasized that abortions remained available for the first 12 weeks of a woman’s pregnancy
and that the law included exceptions for medical emergencies and to protect the mother’s life. Quoting
Casey, the court, however, viewed the law as an impermissible ban on a woman being able to make the
“ultimate decision to terminate” a pregnancy prior to viability.
Similarly, in McCormack v. Herzog, the Ninth Circuit struck down Idaho’s Pain-Capable Unborn Child
Protection Act, which prohibited abortions once the fetus reached a gestational age of 20 weeks. The
Idaho ban applied regardless of whether the fetus attained viability. While the court acknowledged that a
state could act to protect the health and safety of a woman seeking an abortion, it emphasized that the
state may not wholly restrict a woman’s ability to have an abortion before viability. Examining the Idaho
law, the court observed:
[T]he broader effect of the statute is a categorical ban on all actions between twenty weeks
gestational age and viability. This is directly contrary to the Court’s central holding in Casey that a
woman has the right to “choose to have an abortion before viability and to obtain it without undue
interference from the State.”
None of the newly enacted state laws are currently in effect. The effective dates for the laws in Alabama
and Georgia are still forthcoming. Courts have enjoined the laws in the remaining states. Notably, in so
doing, federal district courts have cited Casey in support of the argument that the laws’ challengers have a
strong likelihood of success on the merits. In EMW Women’s Surgical Center v. Beshear, for example, a
federal district court in Kentucky maintained that the Casey Court “stated in no uncertain terms that

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‘[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any
woman from making the ultimate decision to terminate her pregnancy before viability.’”
Abortion Restrictions Based on Specified Fetal Characteristics
In 2019, Arkansas, Kentucky, Missouri, and Utah enacted laws that prohibit the performance of an
abortion when a woman seeks the procedure because of a diagnosis that a fetus has or could have Down
syndrome. The Kentucky and Missouri laws also prohibit an abortion when a woman seeks the procedure
because of the fetus’s race or sex.
In the past, courts have enjoined or invalidated similar state laws. Evaluating such laws, courts have
generally concluded that they conflict with the Casey principle that a state may not categorically prohibit
a woman’s decision to terminate her pregnancy before fetal viability. For example, last year in Preterm-
Cleveland v. Himes, a federal district court in Ohio enjoined a state law that prohibited the performance of
an abortion if the woman’s decision to terminate her pregnancy was based in whole or in part on a fetal
indication of Down syndrome. The court determined that the law unconditionally eliminated the right to
terminate a pre-viable fetus for a defined group of women. As a result, the court viewed the law as going
beyond simply imposing an undue burden on this right, instead concluding that the law “eradicates the
right entirely.”
Reviewing a similar law, the Seventh Circuit in Planned Parenthood of Indiana and Kentucky v.
Commissioner of the Indiana State Department of Health, invalidated parts of a 2016 Indiana law that
prohibited the performance of an abortion if the decision to terminate the pregnancy was solely because of
the fetus’s race, color, national origin, or ancestry, or because of a diagnosis of Down syndrome or any
other disability. Citing Casey, as well as Edwards and McCormack, the court characterized the relevant
provisions as not simply imposing a substantial obstacle in the path of a woman seeking an abortion, but
as “absolute prohibitions on abortion prior to viability.” While the court acknowledged that the state could
impose regulations that affect a woman’s decision to terminate her pregnancy before viability, it
maintained that the state could not prohibit that decision.
During its October 2018 term, the Supreme Court declined to vacate the Seventh Circuit’s decision with
respect to Indiana’s selective abortion provisions. Although the Court did review Planned Parenthood of
Indiana and Kentucky, it constrained its decision to other challenged provisions in the Indiana law that
address the disposal of fetal remains by abortion providers. The Court upheld these provisions, reversing
the judgment of the Seventh Circuit. However, because the Seventh Circuit is the only appellate court to
have considered the constitutionality of abortion restrictions based on certain fetal characteristics and
because the Court tends to eschew resolving legal questions that have not resulted in a split among the
lower federal courts, the Supreme Court declined to review those provisions.
Nevertheless, additional appellate court decisions involving abortion restrictions based on specified fetal
characteristics are likely in the near future. The Sixth Circuit is currently considering an appeal of
Preterm-Cleveland. Oral arguments were conducted in January 2019. Further, in August 2019, the State
of Arkansas indicated that it would appeal the enjoinment of the state’s recently enacted law to the Eighth
Circuit. Earlier in the month, a federal district court in Arkansas enjoined the law, describing it as “an
absolute prohibition on certain abortions prior to viability which the Supreme Court has clearly held
cannot be imposed by the State.”
Additional decisions by the Sixth and Eighth Circuits could result in the Supreme Court’s consideration
of state abortion restrictions based on certain fetal characteristics, particularly if a split of authority
emerges between the circuits. Moreover, while concurring in the Court’s decision not to review Indiana’s
selective abortion provisions, Justice Clarence Thomas questioned upholding these provisions in light of
Casey, noting: “Whatever else might be said about Casey, it did not decide whether the Constitution
requires States to allow eugenic abortions.” A longtime critic of Roe and Casey, Justice Thomas, showing

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a willingness to review and uphold selective abortion prohibitions, further observed: “Although the Court
declines to wade into these issues today, we cannot avoid them forever . . . this Court is dutybound to
address [the] scope” of the right to an abortion.
Abortion Restrictions Based on the Method Performed
Beyond state laws that categorically prohibit certain previability abortions, other states have enacted laws
banning specified abortion methods. For instance, two states, Indiana and North Dakota, respectively
enacted new abortion laws in 2019 that restrict the performance of a specific abortion method. Both laws
would prohibit so-called “dismemberment abortions,” which are described generally to involve the
dismemberment of a living fetus using specified instruments, such as clamps or grasping forceps, and the
subsequent extraction of fetal body parts from the uterus. The laws’ definitions for the term
“dismemberment abortion” are similar and would appear to encompass the dilation and evacuation (D&E)
abortion method, the most common surgical abortion method performed during the second trimester of
pregnancy. The D&E abortion method involves the dilation of the cervix and dismemberment of the fetus
in the uterus. Fetal parts are subsequently removed from the uterus either with forceps or by suction.
In the past, courts have invalided similar state laws that attempted to prohibit the performance of
dismemberment abortions. For example, last year in West Alabama Women’s Center v. Williamson, the
Eleventh Circuit permanently enjoined the Alabama Unborn Child Protection from Dismemberment
Abortion Act, concluding that the law imposed an undue burden on a woman’s ability to obtain an
abortion. In Williamson, the state argued that because the law focused on the dismemberment of a living
fetus, it would not apply if the fetus were killed prior to its dismemberment. Because abortion
practitioners could kill the fetus through alternate methods before completing the D&E procedure, a
prohibition on “dismemberment abortions” would not, in the view of the state, impose an undue burden
on a woman’s right to an abortion. However, after reviewing these alternate fetal demise methods –
injecting potassium chloride into the fetus’s heart, cutting the umbilical cord in utero, and injecting
digoxin into the amniotic fluid – the lower court concluded that these methods would create substantial
obstacles for women seeking an abortion.
Deferring to the trial court’s findings that the fetal demise methods “were not safe, effective, and
available,” the Eleventh Circuit in West Alabama Women’s Center concluded that these methods were
technically difficult to perform and there was a lack of training opportunities to minimize medical risk to
the patient. In addition, the appellate court noted that the fetal demise methods increased the time and cost
associated with obtaining an abortion. Ultimately, the Eleventh Circuit maintained: “All of those findings
about the fetal demise methods . . . support the conclusion that the Act would ‘place a substantial obstacle
in the path of a woman seeking an abortion before the fetus attains viability.’”
In June 2019, the Supreme Court declined to review the Eleventh Circuit’s decision. In a concurring
opinion, however, Justice Thomas criticized the undue burden standard and described the case, now titled
Harris v. West Alabama Women’s Center, as “a stark reminder that our abortion jurisprudence has spiraled
out of control.” Justice Thomas’s concurrences in Harris and the Indiana case, now titled Box v. Planned
Parenthood of Indiana and Kentucky, show a willingness for at least some on the Court to reconsider the
undue burden standard, which, in turn, may prompt additional regulations aimed at curbing abortion and
provide the Court additional opportunities to further clarify, and perhaps, restrict the import of Casey.
How courts evaluate the new state abortion laws may be of interest to Congress following the introduction
of similar measures at the federal level. Bills such as the Heartbeat Protection Act of 2019 (H.R. 490) and
the Dismemberment Abortion Ban Act of 2019 (S. 1035) were introduced earlier this year. Past decisions
on state abortion laws like those discussed here, whose logic would apply equally to any federal
regulations of abortion, would seem to suggest that the bills might have difficulty surviving constitutional
challenge in light of current case law.

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Author Information

Jon O. Shimabukuro

Legislative Attorney

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