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Appeals courts strike down pro-life laws but admit changing viability standard

People hold signs as they attend an anti-abortion rally at the Arkansas state Capitol in Little Rock, Ark. Associated Press/Photo by Danny Johnston

Appeals courts strike down pro-life laws but admit changing viability standard

Two U.S. appeals courts struck down abortion restrictions last week, arguing they violated the previously established viability standard.

On Friday, the 9th U.S. Circuit Court of Appeals struck down Idaho laws restricting abortions at 20 weeks and requiring abortionists to perform all second trimester abortions in a hospital. The judges ruled the 20-week ban is unconstitutional because it restricts abortion before viability, generally considered 24 weeks.

In Arkansas, the 8th U.S. Circuit Court of Appeals sided with abortionists late last month by striking down the state’s 2013 law banning abortions at the 12th week of pregnancy if doctors detect a fetal heartbeat.

The judges ruled abortion restrictions must be based on a baby’s ability to live outside the womb. The 8th Circuit ruling upholds a lower court decision from 2013. Though the appeals court struck down the abortion prohibition, it did retain the requirement that an abortionist inform a woman if a heartbeat has been detected.

The 8Th Circuit heard arguments on a North Dakota fetal heartbeat bill the same day it heard arguments for the Arkansas law but has yet to issue a ruling in that case. North Dakota’s law bans abortions after detecting a fetal heartbeat but doesn’t designate a particular number of weeks.

Attorneys general from both Arkansas and Idaho are reviewing the decisions, according to their spokesmen.

Arkansas still retains a 20-week abortion ban passed in 2013. Similar bans have been enacted in 11 other states. And 12 more states are considering bans, including Wisconsin, where state legislators promised to hold a joint committee hearing on the bill this week. Alabama, Ohio, and New York legislatures are considering bills that ban abortions after detecting a fetal heartbeat.

Though both the 8th and 9th Circuit judges based their reasoning on a 24-week viability standard, the rulings won’t impact legislatures considering 20-week abortion bans, said Americans United for Life general counsel Ovide Lamontagne. Arkansas’ 12-week ban was more aggressive than 20-week bans, and Idaho’s 20-week abortion ban failed to include considerations for maternal health.

Also, the 9th Circuit had already established a liberal stance toward 20-week abortion bans by previously striking down an Arizona law based on similar “flawed reasoning,” Lamontagne said. And because Idaho’s law failed to include maternal health considerations, the courts refused to consider the law’s overall impact on women’s health.

If a law protects women from harm resulting from abortions and prevents fetal pain, “we believe it is constitutional to have a pre-viability ban,” Lamontagne said.

While striking down the Arkansas law, the appeals court did acknowledge viability is becoming a blurred standard thanks to medical advances. The judges noted viability was set at 28 weeks in 1978, but the abortionists arguing against Arkansas’ law used a 24 week standard. And a baby born at 21 weeks in Florida last year survived, the ruling noted.

“Undeniably, medical and technological advances along with mankind’s ever-increasing knowledge of prenatal life … make application of (the) viability standard more difficult,” the judges wrote.

The court’s caution comes only weeks after The New England Journal of Medicine published its finding that more infants are surviving premature births at 22 weeks with medical intervention. Of 78 babies born at 21 weeks and actively treated, 23 percent survived, a slight increase from the 20 percent survival rate found in 2008.

“I guess we would say that these babies deserve a chance,” study co-author Dr. David Bell told The New York Times.

The Associated Press contributed to this report.

Courtney Crandell Courtney is a former WORLD correspondent.

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