According to this article at the Dayton Daily News, Governor Kasich has signed into law House Bill 78, which will ban abortions on fetuses that test positive for being viable outside of the womb. This will require testing to determine viability prior to any abortion at or after the mother is 20 weeks pregnant.
Go read DDN's detailed article with reaction from political leaders and come back and let us know how you feel.
Webster upheld two aspects of Missouri’s statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational age of 20 weeks, make an actual viability determination.
ReplyDeleteThe Webster Court was split in its approach to Missouri’s viability determination requirement, and in its approach to Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe, but found no occasion to overrule it. Instead, the plurality’s approach would water down Roe by applying a less stringent standard of review. The viability testing requirement is valid, the plurality contended, because it “permissibly furthers the State’s interest in protecting potential human life.” Justice O’Connor concurred in the result because in her view the requirement did not impose “an undue burden” on a woman’s right to an abortion, and Justice Scalia concurred in the result while urging that Roe be overruled outright.
Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life from the point of viability, and hence did not challenge Roe’s trimester framework. Nonetheless, a majority of Justices appeared ready to reject a strict trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest “should come into existence only at the point of viability;” Justice O’Connor repeated her view that the trimester approach is “problematic;” and, as mentioned, Justice Scalia would do away with Roe altogether.
Three years later the Court, invoking principles of stare decisis, reaffirmed Roe’s “essential holding,” but restated that holding in terms of undue burden and also abandoned Roe’s reliance on the trimester approach. Roe’s “essential holding,” said the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, has three parts. “First is a recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”
This restatement of Roe’s essentials, recognizing a legitimate state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability still marked “the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,” but less burdensome regulations could be applied before viability. “What is at stake,” the three–Justice plurality asserted, “is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Thus, unless an undue burden is imposed, states may adopt measures “designed to persuade [a woman] to choose childbirth over abortion.”