O'Connor,_Sotomayor,_Ginsburg,_and_Kagan_less

Recently released footage of a fetal lamb in an artificial womb sparked excitement about their possible human use. With artificial wombs, prematurely-born babies could remain in a fetus-like environment as they develop—buying them precious time to grow. Though artificial wombs constitute a victory for premature babies, they spell trouble for abortion rights. So far, the Supreme Court’s rulings on abortion have protected a woman’s right to abortion before the fetus is viable. But, by potentially making fetuses viable much earlier in the pregnancy, artificial wombs threaten the legal protection of abortion rights.

The Supreme Court’s rulings on abortion have hinged on the acknowledgment of two often contradictory interests in abortions: the woman’s and the state’s. In Roe v. Wade (1973), the Court ruled in favor of a woman’s right to an abortion, citing the right to privacy under the 14th Amendment’s Due Process Clause. By deriving the right to abortion from the Due Process Clause, the Court identified abortion as a fundamental right. As such, any laws affecting abortion were therefore required to pass the rigorous “strict scrutiny” test. Laws that pass this test demonstrate a compelling governmental interest, must be narrowly tailored to achieve that interest, and must utilize the least restrictive means to achieve that interest. However, the Court acknowledged that the state did have two compelling interests in regulating abortions—interests compelling enough to pass the strict scrutiny test and justify abortion regulation. The first was the protection of potential human life. The second was the protection of maternal health.

The Court has used different frameworks to balance the contradictory interests in abortions to determine exactly when the state’s interests become compelling enough to allow regulation of a woman’s right to an abortion. In Roe, Justice Blackmun put forth a trimester system to determine when different types of abortion regulations pass or fail the strict scrutiny test. He wrote that in the first trimester, before the fetus becomes viable and when abortion is safer than childbirth for the woman, the state’s interests in regulation for maternal health or potential life were not compelling. Therefore, the state could not regulate abortions in the first trimester. But, Blackmun argued that at the start of the second trimester, when abortions become more medically dangerous, the state’s interest in regulating abortions for maternal health become “compelling.” This allowed the state to regulate abortions from the start of the second trimester until the end of the pregnancy for maternal health. And, at the start of the third trimester, the crucial beginning of viability, the state’s interest in “potentiality of human life” also became compelling. This compelling interest grants states the right to outlaw abortions (except to preserve the life of the mother) to protect “the potentiality of human life.”

abortion rights under roe

Justice Sandra Day O’Connor pointed out flaws in the trimester framework from Roe in her dissent in City of Akron v. Akron Center for Reproductive Health (1983). O’Connor wrote:

The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception. 

In other words, O’Connor deemed Roe’s trimester framework too rigid to account for medical advances. O’Connor asserted that as abortions became safer to perform later on in the pregnancy, the state’s interest in regulating for maternal health would become compelling not at the start of the second trimester, but later on in the pregnancy. And, as medicine allowed for viable fetuses as younger ages—and the line of viability was pushed back—the state’s interest in regulating for potential human life would become compelling earlier in the pregnancy.

O’Connor lacked a judicial majority in Akron to propose an alternative to the Roe framework. But this majority came in 1992 with Planned Parenthood v. Casey (1992). In Casey, the Court upheld the “essential holding” of Roe, the right to abortion, to accord with precedent. However, the Court cast aside the trimester framework put forth by Blackmun in Roe for two reasons. The first was that as medical technology had progressed since 1973, the start of the third trimester no longer delineated the beginning of fetal viability—just as O’Connor predicted in Akron. In 1992, fetuses were viable as early as 23 to 24 weeks into pregnancy—rather than 28 weeks in 1973. Secondly, the Court ruled that Roe erred in defining different levels of state interest as emerging at different stages of the pregnancy. The Court argued that the state’s compelling interests in regulating abortion for maternal health and fetal viability existed from “the outset of the pregnancy.” To compensate for these changes, the Court put forth a new standard of review: the “undue burden” standard. Less rigorous than the strict scrutiny standard, under the undue burden standard a state can regulate abortion throughout the pregnancy—so long as the regulation does not impose an undue burden on the woman’s ability exercise her fundamental right of obtaining an abortion. The Court defined an undue burden as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

abortion rights

With the undue burden standard, the Court tried to accomplish two objectives. Firstly, the Court tried to cut a middle path by allowing regulation throughout the pregnancy while also preserving the right to abortion. The undue burden standard kept the right to abortion before viability intact, but simultaneously gave the state more leeway to regulate abortions than under strict scrutiny. Secondly, the Court tried to create a standard of review that would remain flexible as science advances over time. Unlike Roe, which defined strict periods of time to determine when the state’s interests became compelling, Casey established a flexible two-part system that classifies the state’s interests as always compelling. Before viability, the state’s compelling interests allow it to regulate abortion—so long as it places no “undue burden” on the woman’s right to choose. After viability, the state’s interests become compelling enough to ban abortions altogether. Thus, as time moves forward the Court need only look at the time of fetal viability allowed by current medical technology. If an abortion regulation impacted a woman before fetal viability, it would undergo the undue burden analysis to determine constitutionality. If a law furthering one of the state’s compelling interests impacted a woman after viability, it would be constitutional.

That shift to an undue burden standard in itself reduced abortion rights. The new standard  allowed for a host of restrictions that would have been unconstitutional under Roe. While the regulations approved in Casey—such as required parental permission for minors and a 24 hour waiting period—still allowed women to have an abortion, they made it more difficult for women, especially young, low-income women to exercise their abortion rights. Moreover, the ambiguous nature of the standard, coupled with a right-leaning Court, resulted in the undue burden standard’s erosion.

Now, the Court’s jurisprudence could result not just in a further reduction of abortion rights via the lax undue burden standard, but in their complete eradication. The common thread in the Supreme Court’s abortion rulings remains the Court’s agreement on women’s right to an abortion prior to fetal viability. Fetal viability is the line in the sand that determines when the state’s interests trump a woman’s right to an abortion. Therefore, only after the fetus is viable can a state outlaw abortion completely.

But what if a pregnancy is always viable? Or viable extremely early on in the pregnancy? What if medical technology makes exceptionally young fetuses viable by enabling them to survive outside the womb?

Artificial wombs could make this a reality; fetuses that could not survive in an incubator could develop in their womb-like environment. As science pushes back the point of viability—the time in the pregnancy when the state’s interests overrule the woman’s—the time a woman has to exercise her fundamental right to an abortion shrinks drastically. Over time, women could completely lose their right to an abortion.

This scenario would put even a liberal majority on the Supreme Court in a bind. On one hand, it is settled precedent that women have a fundamental right to choose to have an abortion before viability without undue burden by the state. On the other hand, the Court has acknowledged states’ compelling interests in preserving maternal and potential life, and that these interests become compelling enough to trump a woman’s right to an abortion at viability. With the state’s interests eroding a woman’s right to abortion under precedent, a liberal majority would have to justify the creation of a new constitutional framework—a new standard of review—to preserve abortion rights. However, given the Court’s reluctance to depart from legal precedent, throwing away Casey, Roe, and a myriad of the Court’s abortion rulings would be a difficult task—even for a liberal majority. But given the conservative swing of the Court in recent years—and even more so under Trump—abortion rights are almost certain to die a slow death. As the point of viability gets pushed back by medical advancements like artificial wombs, the time period a woman has to exercise her right to an abortion without undue burden from the state will likely continue to shrink with the Court looking on.

Image Source: Supreme Court archives/Steve Petteway

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