In the last year, two states have passed a 6-week abortion ban. These laws ban abortion prior to viability, in clear violation of a woman’s constitutionally protected right to an abortion.
While each enacted 6-week abortion ban incorporates narrow exceptions (e.g., life endangerment or lethal fetal abnormality), none of these exceptions cure the constitutional issues inherent to 6-week abortion bans.
6-week bans are categorically unconstitutional
The U.S. Supreme Court has consistently held for over 40 years that states may not ban abortion prior to viability. The Court has also made clear that states are prohibited from drawing a line at a particular gestational age to establish fetal viability. And, the Court has insisted that the determination of viability must be left to the physician’s judgement.
In addition, the narrow health exceptions contained in 6-week abortion bans are unconstitutional at any stage of pregnancy, even after viability, because they do not adequately allow physicians to exercise their medical judgement to protect women’s health in all circumstances.
The U.S. Circuit Court of Appeals for the 8th Circuit struck down pre-viability bans in Arkansas and North Dakota that were clearly unconstitutional. In striking down both bans, the court held that the law was unconstitutional and violated the Supreme Court’s precedent that guarantees a woman’s right to end a pregnancy prior to viability.
Both states appealed this decision but the U.S. Supreme Court refused to hear the cases in 2015 and 2016, so the law remains permanently enjoined.
6-week abortion bans are rooted in opposition to legal abortion and would criminalize doctors
Advocates of a 6-week abortion ban have a clear motivation. They want to eliminate all abortion in Florida and try to bring a case to the Supreme Court to directly challenge Roe v. Wade. This ban would also criminalize providers for performing abortions as early as six weeks. This is a direct intrusion on doctor-patient relationships by limiting a physician’s ability to provide the best care for their patient.