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Congressional ______
a*Research Service
Reviewing Recently Enacted State Abortion
Laws and Resulting Litigation
September 6, 2019
Since the start of 2019, at least 11 states have enacted new laws regulating abortions based on a fetus's
gestational age, the detection of a fetal heartbeat, or specified fetal characteristics, such as a diagnosis of
Down syndrome. Some of these states have also imposed restrictions on the dilation and evacuation
abortion method, the most common surgical abortion method performed during the second trimester of
pregnancy. Notably, these 11 states are seeking to curtail the availability of abortion notwithstanding case
law from various federal appellate courts that invalidated similar state laws in the past. This flurry of
legislative activity may be motivated in part to have the Supreme Court reconsider its past abortion
decisions. As the state's governor recently remarked upon signing the Alabama Human Life Protection
Act, it is time, once again, for the U.S. Supreme Court to revisit this important matter[.] While it
remains to be seen whether the Supreme Court will take up this invitation, this Sidebar reviews the newly
enacted state laws, discusses how courts have examined similar abortion regulations in the past, and
addresses the implications of this changing legislative landscape for Congress.
Background
Since Roe v. Wade, the Supreme Court has recognized viability as the earliest point at which a state's
interest in fetal life may allow for an outright prohibition on the performance of an abortion. In Roe, the
Court described viability as the point in fetal development when the fetus is able to live outside of the
mother's womb, with or without artificial assistance. The Court indicated that viability is usually placed
at about seven months (28 weeks) but may occur earlier, even at 24 weeks.
In 1992, a plurality of the Court upheld Roe's essential holding in Planned Parenthood ofSoutheastern
Pennsylvania v. Casey, emphasizing in part that a state may not prohibit a woman from making the
ultimate decision to terminate her pregnancy before viability. At the same time, however, the plurality
recognized that the state has legitimate interests from the outset of a woman's pregnancy in protecting the
health of the woman and the life of the fetus. To effectuate these interests, the plurality determined that
the state may enact pre-viability abortion regulations so long as they do not place an undue burden on a
woman's ability to obtain an abortion. Under Roe, such regulations would have been unconstitutional.
The plurality explained that an undue burden exists if the purpose or effect of an abortion regulation is to
place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
Congressional Research Service
https://crsreports.congress.gov
LSB10346
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govbbaz0001&div=1&collection=&method=preview&ext=.png&size=3)