A federal appeals court Wednesday implored the Supreme Court to revisit critical rulings that protect abortion rights, even as it struck down one of the country's most restrictive antiabortion laws.
The 8th U.S. Circuit Court of Appeals struck down a North Dakota statute that prohibited abortion once a fetal heartbeat can be detected—generally about six weeks into a pregnancy.
On the merits, the ruling is a significant victory for abortion-rights supporters. But it came with major reservations: The 8th Circuit said it reached its decision only because it was bound by Supreme Court precedents—and that the high court should revisit those precedents, giving states more leeway to restrict women's access to abortion.
The Supreme Court has said abortion must be legal before a fetus is "viable," and has indicated that viability usually happens around the 24th week of a pregnancy. But the 8th Circuit said that standard is arbitrary, unworkable, and unfair to states that oppose abortion rights.
"The Court has tied a state's interest in unborn children to developments in obstetrics, not to developments in the unborn," the 8th Circuit wrote. "This leads to troubling consequences for states seeking to protect unborn children."
Aside from the issue of viability and when it happens, which were directly at issue in the North Dakota case, the court invoked a handful of more general arguments against abortion rights. ("The declarations from women who have had abortions also show abortions may cause adverse consequences for the woman's health and well-being," the court wrote.)
The Supreme Court likely will take up abortion in its next term, although it won't necessarily be considering its "viability" standard. The justices are likely to hear a challenge to state laws that require abortion providers to have admitting privileges at a nearby hospital, which have threatened to shutter all or nearly all of the abortion clinics in Texas and Mississippi.
Critics say those laws — which in some cases would require women to travel hundreds of miles to obtain an abortion — conflict with the Supreme Court's ruling that states may not place an "undue burden" on women's right to obtain an abortion before their fetuses are viable.
This article is from the archive of our partner National Journal.
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