America Needs a Federal Law Protecting Abortion Rights Now

Medicine and science have had many years of advancement since the Supreme Court ruled on the landmark abortion cases Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992. At the time of Roe, viability of a fetus to live outside its mother's womb was placed at about 28 weeks. By 1992, when the Court ruled on Casey, viability had already improved to 24 weeks. A little over two decades later, in 2015, the New England Journal of Medicine conducted a study to assess the impact of differing hospital practices on the survival rates and neurodevelopment of “extremely preterm infants,” meaning those born as early as 18 weeks. The journal concluded that infants born at 22 weeks could be kept alive, but that “hospital rates of active treatment varied widely.” Largely because of this study, hospitals began offering lifesaving care to babies at 22 weeks up from 24 weeks. In other words, hospitals switched from giving "compassionate care" until 24 weeks to giving it until 22. This obviously has resulted in an increasing number of surviving preterm babies. To date, the youngest baby on record to survive a premature delivery was 21 weeks old. Other advances continue to be made. Fetoscopy, or laparoscopic fetal surgery, allows surgeons to perform surgery on a fetus as young as 15 weeks, demonstrating the general improvements in fetal survival. In addition to advanced instruments for delicate surgeries, other modernizations in neonatal care include the use of steroids for lung development, more sensitive monitoring devices, increasingly innovative incubators, and better administration of nourishment for sustainability. Since the time when the Supreme Court legalized abortion and held under Roe that a state did not have an appropriate interest in protecting a life before it was self-sustaining, the viability timeline has been steadily shifting. Under Roe sustainability was set at the third trimester and later improved to the second trimester under Casey. Clearly, viability is a moving target. And with science and medicine continuing to advance, there's no telling how much farther it will move, making it increasingly difficult to determine when a fetus is considered viable.

In 1992, under the Planned Parenthood v. Casey decision, the “undue burden” measure replaced the more rigorous "strict scrutiny" standard established under the Roe v. Wade decision. The standard recognized a state’s interest in the preservation of potential life but added that such pursuit cannot place “a substantial obstacle in the path of a woman's choice” and further specified that "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Despite this language, the court has allowed states to impose regulations such as waiting periods and parental consent rules for minors but never a pre-viability ban on abortion—until recently. In 2021, the largest volume of abortion restrictions on record were introduced. Those restrictions come in many forms and limited access to abortion at all stages of pregnancy. A total of 561 restrictions were introduced by all but three states. Of the restrictions introduced, over 100 were enacted into law. The scope of limitations has also expanded and many qualify as an abortion ban; including total bans, trigger bans, reason bans and gestational bans that begin at zero weeks in Arkansas, followed closely by six weeks in Texas and 15 weeks in Mississippi. Of the state gestational bans enacted last year, 12 function as near-complete abortion bans. For example, so-called heartbeat laws enacted in Idaho, Texas, Oklahoma and South Carolina ban abortion once a fetal heartbeat is detected, typically at six weeks gestation and oftentimes before a woman knows that she is pregnant. Overall, 43 states today prohibit or limit abortion at specific points in pregnancy. Standing bills or “trigger laws” that would automatically outlaw abortion if Roe were overthrown are held on the the books of 13 states — including Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. In total, 26 states have laws or constitutional amendments in place that would ban abortion if Roe were rescinded entirely or in part. Reason bans, ostensibly to further justice in equality, restrict the procedure if the decision is based on gender, race or disability. Arizona, for example, signed an extensive abortion bill in April 2021 that banned the procedure when it is sought for a survivable genetic disorder, such as Down syndrome. Other limitations use varying means to restrict access to the procedure and include regulations on multiple abortions; restrictions on the method and distribution of medication abortion; mandatory ultrasound requirements; proscriptions on private insurance coverage and public funding, and parameters around physician and hospital requirements. Compliance with non-medical requirements (such as parental or spousal involvement, counseling and waiting periods from 18 to 72 hours) are also imposed. Even setting aside the functional and looming abortion bans of the past year, the measure of an undue burden has been applied inconsistently. As demonstrated in Casey itself, which challenged several abortion rights provisions, the Court upheld all except the requirement of a woman seeking an abortion to notify her husband. Doctor-patient informed consent, guardian consent and waiting periods were all allowed to stand, all unduly burdensome by any measure.