The first bill that banned abortion at 20 weeks — that’s 20 weeks post-fertilization, or 22 weeks based on last menstrual period – was passed in Nebraska in 2011. Since then, dozens of states have introduced similar laws banning abortion just at the edge of fetal viability, and they all hope to nudge the Supreme Court into reconsidering Roe v. Wade. Yet in almost every state where these 20 week bans have been challenged, state or federal courts have ruled them unconstitutional.
Now it has happened again, this time in North Carolina.
The North Carolina 20-week ban was signed into law decades earlier just after Roe was decided, but it was amended in 2015 to be even more strict on the exceptions under which an abortion could still be allowed. By removing the ability to obtain a termination for any reason short of risk of death or “medical emergency,” the new restriction even more directly contradicted Roe, which states that later abortion must be available in cases where a person’s physical or mental health are in danger.
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The bill was allowed to go into effect despite that fact, but it was challenged in 2016 in the light of successes in the Supreme Court after Whole Woman’s Health v. Hellerstedt.
While it may have taken years for the challenge to make it through the legal apparatus, the finding in federal court was no different than it has been in nearly all challenges to pre-viability abortion bans: It is simply unconstitutional.
U.S. District Judge William Osteen ruled that “week- or event-specific abortion bans” have been repeatedly struck down as violating the Constitution, and ordered the state to revise the amendment within the next 60 days.
“This decision is just a reminder of what the law is,” American Civil Liberties Union attorney Andrew Beck told The Washington Post. “Politicians shouldn’t be meddling with women’s health in a way that’s actually illegal. This decision puts the health and well-being front and center.”
Having yet another ruling note that a ban on abortion prior to viability is unconstitutional is a powerful weapon as we head into a likely showdown over Roe v. Wade within the next few years. The 20-week gestational bans — which the right continues to refer to as “fetal pain” bans, despite the fact that there’s no medical evidence that a fetus has the ability to feel pain that early — were originally anti-abortion activists’ number one chance for getting an abortion ban up to the Supreme Court to potentially overturn Roe.
Their initial goal was to force a circuit split, hoping to get one appeals court circuit to say the bill was constitutional and a second to say the opposite, which would force SCOTUS to step in for a final decision.
But so far, that gambit just hasn’t worked. Idaho’s 9th Circuit was the first to call the ban an unconstitutional pre-viability ban, and Arizona followed later behind. So did Georgia, although that ruling was confusingly overturned later on a technicality due to the state’s “sovereign immunity” rule.
With countless states moving to embrace far more restrictive bills — such as bans that would make it almost impossible to get an abortion after the first trimester, or even more extreme heartbeat bans which make it illegal at 6 weeks — the right has lost most interest in these 20-week bans.
After all, what’s the point of chipping away at the gestational limit by just a week or two when you can wallop months at a time off of it with other bills?
But when it comes time to challenge Roe, it may be that a 20-week ban would be the right vehicle for abortion opponents — simply because it looks like such a small change initially. It could also be just the cover needed to allow Chief Justice John Roberts to agree to break precedent in the Supreme Court.
So, just in case that comes true, the more lower court decisions we have reiterating just how unconstitutional a 20-week ban is, the safer we may be in the long run.