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Legal Issues with 6-Week Abortion Bans

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. 

Other States

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Iowa

Last year Iowa’s governor signed a bill into law that bans abortion pre-viability. A state judge recently rulled the law is unconstitutional.

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North Dakota

In 2013, a six-week abortion ban was signed into law. A federal district court blocked the law and found it unconstitutional based on protections under Roe v. Wade. The case was appealed to the 8th U.S. Circuit Court of Appeals where the bill was also blocked. Shortly after, another attempt to appeal the circuit court decision was made to the U.S. Supreme Court, which denied to hear the case.

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Ohio

In December of 2018, Governor Kasich vetoed a 6-week abortion ban that was introduced and passed by the state legislature. Gov. Kasich stated that the bill undermines the Supreme Court of the United States’ current rulings on abortion and cited the cost burden a lawsuit would pose to Ohio’s taxpayers.

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Arkansas

A 12-week abortion ban went into effect in 2013 which was challenged in federal court and later found unconstitutional. The state tried to appeal to the U.S. Supreme Court which declined to hear the case in 2016. 

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Arizona

In 2012, Arizona enacted a 20-week abortion ban that was appealed to the 9th U.S. Circuit Court of Appeals which found the laws unconstitutional “under a long line of invariant Supreme Court precedents.” The decision was appealed to the U.S. Supreme Court, which again, denied to hear the case.