The Secret History of the GOP’s New Abortion Ban
And a 20-week ban could create a major new avenue for directly challenging Roe v. Wade. Since 2010, 12 states have passed similar bans; three have been blocked by federal lawsuits. If and when one of those cases comes before the Supreme Court, it could undermine the very framework on which the landmark 1973 decision is built—the notion that women have a constitutional right to terminate a pregnancy at any point before the fetus is viable outside the womb. “There is this temptation to say that these restrictions are just on the edge, that they won’t affect that many women,” says Katha Pollitt, Nation columnist and author of Pro: Reclaiming Abortion Rights. “But they actually strike at the heart of the right to have an abortion. Because it’s a strike on Roe.”
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And quickening remained an important legal concept. In 1970, a federal district court in Wisconsin ruled that the state could not interfere with a woman’s decision to terminate until she was carrying a “quick” fetus. As the Supreme Court prepared to hear arguments about absolute abortion bans, Illinois lawmakers moved to update the state’s near-total abortion ban with a 20-week ban that would survive in the event that the Supreme Court legalized abortion up until quickening.
Unexpectedly, Roe v. Wade dismissed quickening and instead focused on viability. The Supreme Court noted that average viability began at 28 weeks (the start of the third trimester), but that it was possible for fetuses to be viable as early at 24 weeks. The justices left it up to doctors to determine viability in individual cases. States, they ruled, could not set a date for viability. (In a later ruling, the Supreme Court did away with its original trimester framework.)