Commonwealth of PennsyJ.

vania

Legislative Reference Bureau

May 10, 2OL9

LEGAT OPTNION

This opinion is íssued to the requestor and the requestor's

staff for individua1 use. The LegisJ-ative Reference Bureau issues
only advisory opinions and does not issue ruJ.ings or binding
legal. opinions
Urrt(
Vincent C. DeÎ,iberato, ,Jr.
Director

ST]B.IECT: Vühether HouseBill- 327, Printer's No. 7404 (2019),

unconstitutíonally prohibits a woman from seeking an
abortion prior to the unborn child reachíng viability

TO Hon. Dan Frankel

House of Representatives

FROM: Peter Klein i2t^t l4

Associate Counsel

1
 QttEsTroN PRESENTED

Does House Bill 32L, Printer's No. 1404 (2019),

unconstj-tutionally prohibit a woman from obtaining an abortion
prior to the unborn child reaching viability?

BRIEF .AI{SÛ{ER

Yes.'A state may not prohibit or unduly burden a woman's

right to obtain an abortion prior to fetal viability. House Bill

32I unconstitutionally prohibits a woman from obtaining an

abort.ion prior to the unborn chitd reaching vj-ability.

STÀTEIqENT OF FACTS

By electronic mall to Amy J. Mendelsohn, Associate Counsel

of the Legislative Reference Bureau, dated May 'l , 2019,
Representative Frankel requested a legal opi-nion assessing the
constitutionality of House Bill 32I, Printer's No. 1404 (2019).

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 DISCUSSION

House Bill 327, Printer's No. I404 (2019) {hereinafter

referred to as HB 3211, amends, inter aLia, lB Pa.C.S. S 3204(c)
(relating to medical consul-tation and judgment) to prohibit a

woman from obtaining an abortion due to a prenatal diagnosis of

Down syndrome. 1B Pa.C.S. (2015 Ed.) S 3204(c), 1B Pa.C.S.A. S

3204(c) (2015). The bill's prohíbition does not provide for a

distinction based on whether the fetus has reached viability. As

a threshold matter, section 3204 (c) currently prohibits a woman

from obtaining an abortion due to the disfavored sex of an unborn

child at any stage of a woman's pregnancy. Id. The

constitutíonality of Pennsylvania's gender-based abortion

prohíbition has not been challenged. It appears this would be a

case of first impression for our courts if HB 32I were enacted

into law and its constitutionality challenged.

The most likely constitutional challenge, and the only

challenge discussed in this legal opinlon, would be to the
abortion ban in HB 327 operating at every stage of a woman's

pregnancy, including before an unborn child has reached

viability.

The Supreme Court of the United States has used the

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viability of an unborn child living outside of a motherfs womb as

the point at which a state's interest in protecting the life of

the unborn child is compelling enough to place restrictions on a

h¡oman's access to an abortion. Pfanned Parenthood of Southeastern

PennsyTvania v Casey, 505 U.S. 833, tI2 S.Ct. 219I (1992)
(plurality opinion) . The Casey Court held that prior to an unborn
child reaching viability, "the state's interests are not strong
enough to support a prohibitlon of abortion or the imposition of
a substantial obstacle to the woman's effective right to el-ect
the procedure tt
Id. at 846, II2 S.Ct. at 2804.

Early in abortíon jurisprudence, the Supreme Court declared

that states may not enact laws protecting fet.al- life prior to
viability and adopted a rigid trimester framework. Jane Roe v
Henry lr,lade, 410 U.S. 113, 763-64, 93 S.Ct. 703, 12I-32 (1973)
The Roe Court recognized that a state retains a definite interest
in protectlng a woman's hearth and safety when an abortion is
proposed at a late stage of pregnancy. Id. at 150, 93 S.Ct. at
125 .

The Roe and Casey Courts selected viability as the earliest

polnt for significant abortion regulation. Viability is the time
"when, in the judgment of the attending physicj_an on the
particular facts of the case before him, there is a reasonable

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likelihood of the fetus' sustained survival outside the womb,

with or wj-thout artificial support." Cafautti v. Frankfin, 439

U.S. 379, 3BB, 99 S.Ct. 615, 682 (I919). "[T]he concept of

viabi I ity is the time at which there is a realistic
possibility of malntaining and nouríshing a llfe outside the
womb...." Casey, 505 U.S. at 870, II2 S.Ct. at 2871. The Roe

Court stated that a fetus becomes viable when 1t is "potentially

able to live outside the mother's womb, albeit with artífícial
aid" and that viability is the point at which the fet.us
"presumably has the capability of meaningful life outside the
mother's womb." Roe,410 U.S. at 160-63, 93 S.Ct. at 130-32.

Casey rejected Roe's rigid trimester framework and the

interpretation of Roe that considered all previability
regulations of abortion unwarranted. Casey, 505 U.S. at 875, II2
S. Ct. at 28L9-20. Casey overruled the holdings in two cases
because they undervalued the state's interest in potential life.
See id. at BB1-83, LL2 S.Ct. at 2822-24 (overruling Thornburgh v
Anterican CoTlege of Obstetricians and Gynecoloqists, 416 U.S. 14'l
(1986), and Akron v. Akron Center for Reproductive HeaJth, Inc.,
462 u.s. 4!6 (1983) ) .

The Casey plurality, however, preserved a weakened version

of Roe's viability rule by prohibiting any regulation creating a

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substantíal obstacle to a previability abortion. The central
holdings of the Casey decision regarding previability abortions
are: (1) a state may not prohibì-t a h/oman from obtaining an

abortion before the unborn child has reached viability; (2) a

state may not impose an undue burden upon a woman's ability to

obtain a previability abortion, whose "purpose or effect is to
place a substantial obstacle in the path of a woman seeking an

abortion before the fetus attains viability"; and (3) a state may

adopt regulatíons to create a "structural mechanism... Ito]

express profound respect for the life of the unborn" so long AS

the mechanism does not prohibit or impermisslbly burden a woman's

abílity to obt.ain a previability abortion. Id. at 811-79, II2
S.Ct. 2820-22. See al-so Al-berto GonzaLes v. Leroy Carhart, 550

U.S. I24, I21 S.Ct. 1670 (2001) (upholdíng a Federaf ban on

partial-birth abortions while reaffirming Casey's three pillars

restricting the regulation of previability abortions).

WhiIe Pennsylvania courts have not addressed this issue,

other Federal districts have rejected state efforts to
legislatively burden or prohibit previability abortions. Most

notably, the Unlted States Supreme Court let stand an Eiqhth

Circuit decision rejecting as unconstitutional a North Dakota law
banning abortions where a fetal heartbeat is detected. MKB

Manaqement Corp. v. Stenehjem, l95 F.3d 168 (Bth Cir.2015);

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Stenehj em v MKB Management Corp. 136 S.Ct. 981 (2016) (Mem.),
cert. denied. A fetal heartbeat, as the court found, can be

detected as early as six weeks. While the United States Supreme

Court has not establ-ished a precise benchmark for fetal viabiJ-íty

in Casey or its progeny, Lhe MKB court found that the Court
certainly envisioned the point of viability occurring well beyond
the six-week mark. MKB, 195 F.3d at 113. Thre MKB court felt
constrained to reject the fetal heartbeat abortíon ban, despì-te
strong reservations over the Court's current viabilíty standard,

"by Supreme Court precedent holding that states may not prohibit
pre-viability abortions. .
It
Id. See afso: McCormack v. Herzoq,
7BB F.3d 1017,7029 (9th Cir. 20t5) ("Although the state may

ensure that the woman's choice is i-nformed and protect the health
and safety of a woman seeking an abortion, the state may not
prohibit a \^/oman from making the 'ultimate decision' to undergo
an abortion Ibefore the fetus reaches viability]."); Isaacson v
Horne, 11,6 F.3d 7273, 1222 (9Lh Cir. 2013) , cert. denied 734

S.Ct. 905 (2074) (restating Casey: "Before vlability, the State's

interests are not strong enough to support a prohibition of
abortion or the imposition of a subst.antial obstacle to the
woman's ef fective right to elect t.he procedure. "); WhoJ-e lloman's

HeaLth v. Hel-l-erstedt, 736 S.Ct. 2292 (2016) (reaf firming Casey,

the Court held that Texas's newly enacted abortion regulatlons

1
unconstitutional-1y burdened a woman's ability to obtain an

abortion) .

House Bill 32L does not distinguish between viability and

previability in banning abortíons sought to prevent the birth of

a child with Down syndrome. While states may construct a

structural mechanism to express profound respect for the Iife of

an unborn child who has noL yet reached viability, a state may

not unreasonably burden or prohibit access to a previability

abortion. The pertinent caselaw does not differentiate between

permì-ssible and impermissíble types of prohibitions. Any

prohibition on a previability abortion, including to prevent a

mother from term-inating a pregnancy based on a diagnosis of Down

syndrome, would run afoul of current Supreme Court jurisprudence.

The State of Indiana enacted in 2016 a law similar to HB 327

which prevented a woman from obtaining an abortion at any stage

of a pregnancy due to certain enumerated reasons, including a

diagnosis of Down syndrome. The District Court rejected Indiana's

law as an impermissibl-e prohibition on the right of a woman to
obtain a previability abortion: "The anti-discrimination
provisions of HEA L331 clearly violate the first of these
principles in that they prevent women from obtaining certain
abortions before fetal viabílity. The u/oman's right to choose to
have an abortion pre-viability 1s categorical " Pl-anned

B
Parenthood of Indiana and Kentucky, Inc. v. Commissioner/ Indiana
State Department of HeaJth, 194 F.Supp.3d B1B, 826-27 (D.C. Ind.
2016) . fndlana made the novel argument that abortlon is a binary

choice and once a woman has decided to bring a baby to term, she

should not be able to decide later to termlnate the pregnancy for

a reason the state has deemed improper. The courL responded:

IT] he very notion that, pre-viability, a State can

exami-ne the basis for a woman's choice to make this
private, personal and difficult decision, if she at
some point earlier decided she wants a child as a
general matter, is inconsistent with the notion of a
right rooted in privacy concerns and a Iiberty right
to make independent decisions.
Id. at 829

The 7th Circuit Court of Appeals affirmed the lower court's

decision. Pl-anned Parenthood of Indiana and Kentucky, Inc. v
Commissioner, Indiana Department of Health, BBB F.3d 300 (7th
Cir. 20IB) . The court of appeals found that Indíana violated
Casey's prohibition against a state placing substantial obstacles
on a woman's path t.o an abortion: "These provisions are far
greater than a substantial obstacle; they are absolute
prohibitions on abortions prior to viability which the Supreme

Court has clearly held cannot be imposed by the State." Id. at

306.

Under current Supreme Court jurisprudence, a state's

9
interest is not strong enough to outweigh a woman's privacy
interest in seeking a previability abortion; and the courL of
appeals refused to reweigh those interests in light of Indiana's
ner^, law. Id. at 307. "The Supreme Court has been clear: the State
may inform a woman's decisj-on before viability' but it cannot
prohibit it. " Id.

The 7th Circuit Court of Appeals likewise rejected Indiana's

novel "binary choice" argument. The Supreme Court has not created
the legal space for a state to limit access to an abortion for a

woman who initially desired a pregnancy. Id. at 306. Indeed, a

woman's right to seek an abortion before a fetus has reached

viability is borne out of her right to privacy, which is directly
contravened by a state's statutory attempt to determine a woman's

intent at different stages of her pregnancy. Id. at 306-07.

A constitutlonal challenge to the contents of HB 32I, should

PennsyJ-vanla enact the bill ínto 1aw, would 1ikely lead to the
same resuft. No court that has interpreted and applied Casey and
its progeny has suggested that a state may institute any form of
a prohibition, for any reason, ofl abortions prior to a fetus
reaching viability.

Based on the foregoing precedent and the decisions of our

sister courts, it would seem that HB 32I would be an

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unconstitutional prohibition and undue burden on a woman's
ability to obtain an abortion before an unborn child has reached
viability. Should Pennsylvania enact HB 327 into law, a challenge
to the Down syndrome-based ban may also call into question the
constitutionality of the existing gender-based abortion
prohibition.

CONCLUSION

A state may not prohibit or unduly burden a woman's ríght to

obtain an abortíon prior to fetal viability. House Bitl 321,,

Prínterrs No. I4O4 (201,9), unconstitutionally prohibits a woman

from obtaining an abortion prior to an unborn chíld reaching

viability.

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