And it’s coming from judges on two federal appeals courts, the 8th and the 5th circuits.
“The court’s viability standard has proven unsatisfactory because it gives too little consideration to the ‘substantial state interest in potential life throughout pregnancy,’” said an opinion by Judge Bobby Shepherd of the 8th Circuit, who was joined by Lavenski Smith and Duane Benton.
“Good reasons exist for the court to re-evaluate its jurisprudence,” he wrote.
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The opinion explained medical and scientific advances reveal the fault in the court’s viability standard.
“For example, although ‘states in the 1970s lacked the power to ban an abortion of a 24-week-old-fetus because that fetus would not have satisfied the viability standard of that time, today … that same fetus would be considered viable, and states would have the power to restrict[such] abortions.’”
The opinion noted that in the 1992 Casey case, the last affirmation of abortion “rights” in the U.S., even the Supreme Court “already acknowledged that viability continues to occur earlier in pregnancy.”
“When the court decided Roe in 1973, viability generally occurred at 28 weeks. In 1992, viability ‘sometimes’ occurred at 23 to 24 weeks. Today, viability generally occurs at 24 weeks, but it may occur weeks earlier.”
The ruling also said the facts “underlying Roe and Casey may have changed.”
For one thing, the assumption has been that women will make abortion decisions in consultation with their physician. Not so, said the court decision.