Fetal Viability and Judge Amy Coney Barrett

Fetal Viability and Judge Amy Coney Barrett

Legal Sidebari
Fetal Viability and Judge Amy Coney Barrett
October 16, 2020

The Supreme Court nomination of Judge Amy Coney Barrett has prompted greater scrutiny of her judicial
opinions, academic writing, and statements to discern how she might decide future cases if she were
confirmed to the High Court. With cases involving the Affordable Care Act, the First Amendment, and
civil rights on the Court’s docket in its current term, Judge Barrett’s views on these subjects are being
carefully reviewed. Commentators are also examining Judge Barrett’s background and writing to try to
gauge her views on the Court’s seminal 1973 abortion decision, Roe v. Wade. Although the Supreme
Court’s docket does not include any cases involving abortion at the moment, the Court is considering
whether to review Dobbs v. Jackson Women’s Health Organization. Dobbs implicates one of Roe’s
“essential holdings”: that a state may not completely prohibit abortion before fetal viability, a point in
fetal development when a fetus is able to live outside of the mother’s womb with or without artificial
assistance. Judge Barrett joined a dissenting opinion in a 2018 case involving an Indiana law that would
have restricted abortions based on fetal characteristics such as sex or a Down syndrome diagnosis. While
joining a judicial opinion authored by another judge does not necessarily reflect full agreement with the
underlying opinion, it may grant some insight into Judge Barrett’s views. This Sidebar examines that
2018 dissent and discusses Dobbs as it awaits further consideration by the Court.
Since Roe, the Supreme Court has recognized viability as the earliest point at which a state’s interest in
fetal life may al ow for an outright prohibition on the performance of an abortion. The Roe Court
indicated that viability “is usual y placed at about seven months (28 weeks) but may occur earlier, even at
24 weeks.” In its 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court
“reaffirm[ed]” this aspect of Roe, holding that a woman has a “right … to choose to have an abortion
before viability and to obtain it without undue interference from the State.” A plurality of the Casey Court
also adopted the undue burden standard that is used to evaluate abortion regulations, such as parental
notification requirements, that may restrict but not prohibit the performance of pre-viability abortions.
During her tenure with the U.S. Court of Appeals for the Seventh Circuit, Judge Barrett has not authored
any opinions on abortion. However, in two abortion cases, Planned Parenthood of Indiana and Kentucky
v. Box and Planned Parenthood of Indiana and Kentucky v. Commissioner of the Indiana State
Department of Health (Commissioner), Judge Barrett joined dissenting opinions authored by two of the
court’s other judges. Although the Box dissent focused on a procedural matter, the Commissioner dissent
did comment on the constitutionality of an abortion regulation at issue in the case. In Commissioner, a
federal district court in Indiana permanently enjoined three Indiana regulations: (1) restrictions on
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abortions sought because of a fetus’s sex, race, color, national origin, ancestry, or Down syndrome
diagnosis; (2) informed consent requirements related to such restrictions; and (3) requirements concerning
the disposal of aborted fetuses. After a panel of the Seventh Circuit affirmed the district court’s
injunction, Indiana requested en banc or full-court review, but only with regard to the fetal disposition
requirements. The Seventh Circuit subsequently denied the state’s request to rehear the case.
Judge Barrett joined a dissenting opinion that supported en banc review of the district court’s decision.
Although the state requested review for only the court’s holding on the fetal disposition requirements, the
opinion nevertheless addressed Indiana’s abortion restrictions based on a fetus’s characteristics,
describing them as a “eugenics statute.” The dissenting opinion criticized the panel’s determination that
the restrictions were unconstitutional in light of Casey because they prohibited certain abortions prior to
fetal viability.
Specifical y, the dissent questioned whether Casey should be interpreted to invalidate a type of abortion
regulation that was not before the Court in that case: “[u]sing abortion to promote eugenic goals,” which
the dissent described as “moral y and prudential y debatable on grounds different from those that underlay
the statutes Casey considered.” The dissent seemed skeptical that Casey should restrict a state from
prohibiting abortions based on fetal characteristics, even if these abortions were to occur before fetal
viability: “Does the Constitution supply a right to evade regulation by choosing a child’s genetic makeup
after conception, aborting any fetus whose genes show a likelihood that the child wil be short, or
nearsighted, or intel ectual y average, or lack perfect pitch—or be the ‘wrong’ sex or race?”
A state’s authority to prohibit abortions prior to fetal viability is directly at issue in Dobbs v. Jackson
Women’s Health Organization. In Dobbs, the U.S. Court of Appeals for the Fifth Circuit affirmed a
permanent injunction against enforcement of Mississippi’s Gestational Age Act. The act prohibits
abortions, with limited exceptions, once a fetus reaches a gestational age of 15 weeks. Citing the state’s
failure to show that fetal viability could occur as early as 15 weeks, the Fifth Circuit maintained that the
act is “a ban on certain pre-viability abortions, which Casey does not tolerate.”
In its petition for Supreme Court review, Mississippi argues that the Court should revisit the viability
standard, contending that it is inflexible and does not accommodate a greater understanding of prenatal
life. For example, according to the state, medical and scientific advances show that a fetus can detect and
respond to pain once it has reached a gestational age of 10-12 weeks. In light of such findings,
Mississippi maintains that it should be al owed to prohibit “inhumane procedures.” The state also argues
that the viability standard does not adequately address its interest in protecting potential human life
throughout a fetus’s development.
Notably, the U.S. Courts of Appeals for the Eighth and Ninth Circuits have invalidated other state laws
that would have prohibited abortions once a fetus reaches a gestational age younger than 24 weeks. In
their decisions, the two appel ate courts cited the Casey Court’s determination that a state may not
prohibit a woman from having an abortion before a fetus attains viability. In McCormack v. Herzog, for
example, the Ninth Circuit struck down Idaho’s Pain-Capable Unborn Child Protection Act, which
prohibited abortions once a fetus reached a gestational age of 20 weeks. Examining the Idaho law, the
Ninth Circuit 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.”
While it may be possible to distinguish Mississippi’s Gestational Age Act from the Indiana abortion
restrictions that the Seventh Circuit considered, Dobbs and the dissenting opinion in Commissioner would
seem to raise similar questions about the viability standard and prohibitions on pre-viability abortions. If
the Court agrees to review Dobbs, it could potential y consider revisions to the viability standard that

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might al ow at least some prohibitions on the procedure. Dobbs is arguably different from other recent
abortion cases that have involved the undue burden standard used to evaluate abortion regulations. Since
the Court’s most recent abortion decision, June Medical Services v. Russo, was decided in May 2020,
many have focused on how the undue burden standard wil be applied in the future. A Supreme Court
decision to review Dobbs would likely redirect attention to the viability standard and the possibility of
prohibiting abortions prior to fetal viability.

Author Information

Jon O. Shimabukuro

Legislative Attorney

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