Will the Supreme Court Agree to Further Limit a Woman’s Right to an Abortion?

by | Dec 27, 2019 | Blog, Fertility Law

Recently Arkansas officials filed a petition with the U.S. Supreme Court seeking review of a decision from the Eighth Circuit Court of Appeals which held unconstitutional an Arkansas statute limiting a woman’s right to have an abortion.  Since the Supreme Court’s 1973 seminal decision in Roe v. Wade, which first announced a constitutional right to terminate a pregnancy, the Court has never abandoned its so-called “fetal viability” principle which limits a state’s power to ban abortions at an earlier point of gestation than when the fetus could survive outside the womb (typically 24 weeks of gestation).  A number of states have attempted to pass laws imposing earlier bans to an abortion.  Arkansas recently did just that, by passing a law which prohibits abortions past the first trimester absent cases of rape, incest, danger to the life or health of the gestating mother, or diagnosis of a lethal fetal disorder.

The petition filed by Arkansas officials argues that the Court’s judicially created “fetal viability” rule is not only constitutionally infirm, but also impermissibly impedes on a State’s “profound interests in protecting the life of the unborn child, protecting the health of the mother, and upholding the integrity of the medical profession.”  An amicus curiae was filed by 3,355 Women Injured by Abortion, et al., “in support of partial affirmance and partial reversal.”

Although the two Arkansas physicians who initially brought the action in District Court waived their right to file a response to the petition, the Court ordered the physicians to file a response by December 10, 2015.  Under Supreme Court procedures a single Justice can ask for a response to a petition when the other side has waived that right; thus, it is less than clear whether at least four Justices will vote to hear the case on the merits (the minimum required to grant a petition for hearing).

Gestational surrogacy agreements frequently contain provisions detailing when a gestational surrogate may voluntarily terminate a pregnancy.  The sole source of consent for terminating a pregnancy rests with the gestational surrogate; however, in entering into a gestational surrogacy agreement the gestational surrogate typically agrees to follow the intended parents’ decisions as it relates to terminating a pregnancy and selective fetal reduction (a form of abortion where less than the entire pregnancy is voluntarily terminated).  While a gestational surrogacy agreement was not involved in the Arkansas case, a decision from the Supreme Court abrogating the “fetal viability” principle could significantly impact an intended parents’ ability to selectively reduce a pregnancy or voluntarily terminate a pregnancy altogether.

The case is Beck v. Edwards, Case No. 15-448.

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