Would Virginia's proposed 20-week abortion ban (the Pain-Capable Unborn Child Protection Act) survive constitutional review under Roe and Casey?

Plain-English summary

Delegate Charniele Herring asked the AG whether Virginia House Bill 1473, the "Pain-Capable Unborn Child Protection Act," would survive constitutional challenge. The bill would have prohibited abortion of a fetus more than 20 weeks after fertilization, except where the pregnant woman had a condition requiring abortion to prevent death or "serious risk of substantial and irreversible physical impairment." Violators faced Class 4 felony charges and civil damages.

Attorney General Mark R. Herring concluded the bill would very likely be struck down as unconstitutional. The reasoning was grounded entirely in then-controlling U.S. Supreme Court abortion jurisprudence.

Roe v. Wade, 410 U.S. 113 (1973), established the viability framework: states cannot prohibit abortion before fetal viability or impose substantial obstacles to it. Planned Parenthood v. Casey, 505 U.S. 833 (1992), reaffirmed viability as the touchstone and articulated the "undue burden" standard. Gonzales v. Carhart, 550 U.S. 124 (2007), and Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016), maintained the framework. Viability is defined as "the time 'when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus'[s] sustained survival outside the womb, with or without artificial support'" (MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015), quoting Colautti v. Franklin, 439 U.S. 379, 388 (1979)). Critically, viability is a medical determination by an attending physician, not a fixed weeks number set by legislatures or courts (Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 64 (1976)).

A fetus is typically viable around 23-24 weeks, not 20 weeks (Stenehjem, citing medical declarations; Isaacson v. Horne, 716 F.3d 1213, 1218 n.4 (9th Cir. 2013)). HB 1473's 20-week cap therefore operated as a pre-viability ban. Pre-viability bans are unconstitutional under Casey.

Other circuit courts had struck down similar laws. Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996), invalidated Utah's law treating 20 weeks as the point of viability. Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013), struck down Arizona's 20-week ban; the Supreme Court denied certiorari. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015), struck down Idaho's similar law. The AG warned that if Virginia enacted HB 1473, it would "likely result in a significant, costly, and successful constitutional challenge against the Commonwealth."

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The U.S. Supreme Court's June 2022 decision in Dobbs v. Jackson Women's Health Organization overruled Roe v. Wade and Planned Parenthood v. Casey and eliminated the federal constitutional viability framework that this opinion relied on. The substantive constitutional analysis in this opinion no longer reflects current federal law. Virginia abortion law since 2022 has been a matter of state legislation and state constitutional litigation. Anyone evaluating a current Virginia abortion statute should consult current state law and Dobbs-era case law.

Background and statutory framework

At the time of the opinion, the U.S. Supreme Court's abortion jurisprudence rested on a viability framework. Roe v. Wade, 410 U.S. 113 (1973), held that a woman has a right "to choose to have an abortion before viability and to obtain it without undue interference from the State" (as quoted in Casey, 505 U.S. at 846). Pre-viability, "the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure."

Casey (505 U.S. at 861) reaffirmed: "no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips." The joint opinion of O'Connor, Kennedy, and Souter (505 U.S. at 871) added: "The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce."

Gonzales v. Carhart, 550 U.S. 124, 146 (2007), reaffirmed: pre-viability, a state "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016), maintained the viability framework while applying the undue-burden standard to two Texas restrictions.

Viability is a medical determination. Stenehjem (795 F.3d at 773) quoted Colautti v. Franklin (439 U.S. at 388): viability means "the time 'when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus'[s] sustained survival outside the womb, with or without artificial support.'" Danforth (428 U.S. at 64) made the institutional point: "it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period."

The empirical record placed typical viability at about 23-24 weeks, not 20 weeks (Stenehjem, accepting declarations from two doctors; Isaacson, 716 F.3d at 1218 n.4 (parties agreed "no fetus is viable at twenty weeks gestational age")). HB 1473's 20-week-from-fertilization threshold therefore operated as a pre-viability ban.

Three circuit decisions had invalidated similar laws by 2017. Jane L. v. Bangerter, 102 F.3d 1112, 1115, 1118 (10th Cir. 1996), struck down Utah's law treating 20 weeks as viability, calling the state's arguments "disingenuous and unpersuasive." Isaacson v. Horne, 716 F.3d 1213, 1226 (9th Cir. 2013), struck down Arizona's 20-week ban; the Supreme Court denied cert. McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015), struck down Idaho's similar law for placing "an arbitrary time limit on when women can obtain abortions." Edwards v. Beck, 786 F.3d 1113, 1115, 1117 (8th Cir. 2015), affirmed an injunction against the Arkansas Human Heartbeat Protection Act for prohibiting abortions before viability. Stenehjem itself struck down a North Dakota fetal-heartbeat statute.

The AG's analysis applied to the substantive federal constitutional question. State constitutional questions were not addressed.

Common questions

Q: What did the AG conclude about HB 1473 in 2017?
A: That the bill would not withstand constitutional scrutiny under then-controlling U.S. Supreme Court precedent. Enacting it would likely result in a successful constitutional challenge against the Commonwealth.

Q: Why was 20 weeks a problem under the law as it stood in 2017?
A: Because medical evidence placed typical fetal viability at about 23-24 weeks, not 20. The 20-week threshold operated as a pre-viability prohibition, which Roe and Casey held unconstitutional.

Q: Could the General Assembly have set a different number that worked?
A: Under the viability framework, no fixed-weeks ban worked. Viability is a case-by-case medical determination by the attending physician. Legislatures cannot pin it to a particular week.

Q: Does this analysis still apply today?
A: No. Dobbs v. Jackson Women's Health Organization (2022) overruled Roe and Casey. The federal viability framework no longer governs. Current Virginia abortion law turns on state legislation and state constitutional law.

Q: What did other circuit courts say about similar 20-week bans?
A: They struck them down. The Tenth Circuit (Bangerter), Ninth Circuit (Isaacson, McCormack), and Eighth Circuit (Edwards, Stenehjem) all invalidated pre-viability gestational-age bans before 2017.

Q: What were HB 1473's penalties?
A: Class 4 felony criminal liability for performing or inducing an abortion in violation of the prohibition, plus civil remedies including injunctive relief and actual and punitive damages.

Citations and references

Virginia statutes:

• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases (federal):

• Roe v. Wade, 410 U.S. 113 (1973)
• Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)
• Gonzales v. Carhart, 550 U.S. 124 (2007)
• Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016)
• MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015), cert. denied, 136 S. Ct. 981 (2016)
• Colautti v. Franklin, 439 U.S. 379 (1979)
• Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976)
• Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996), cert. denied, 117 S. Ct. 2453 (1997)
• Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013), cert. denied, 134 S. Ct. 905 (2014)
• McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015)
• Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015), cert. denied, 136 S. Ct. 895 (2016)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-003-Herring-Charniele---fetal-pain-billl.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

January 23, 2017

The Honorable Charniele L. Herring
Member, Virginia House of Delegates
Post Office Box 11779
Alexandria, Virginia 22312

Dear Delegate Herring:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You have asked whether the general prohibition of abortions after 20 weeks' gestation proposed by House Bill 1473 ("HB 1473") would withstand constitutional scrutiny, in light of U.S. Supreme Court case law.

Background

HB 1473 seeks to create the Pain-Capable Unborn Child Protection Act (the "Act"), which would prohibit an abortion of a fetus more than 20 weeks after fertilization "unless, in reasonable medical judgment, [the pregnant woman] has a condition that so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment."[1] The Act makes it a Class 4 felony for any person to perform or induce an abortion in violation of that prohibition, and prescribes civil remedies, including injunctive relief and actual and punitive damages, against any person performing or inducing an abortion in violation of the Act.[2]

Applicable Law and Discussion

The Supreme Court has repeatedly recognized that States may not unduly restrict a woman's access to an abortion before the point of viability. In 1973, in Roe v. Wade,[3] the Supreme Court established a woman's right "to choose to have an abortion before viability and to obtain it without undue interference from the State."[4] It explained that "[b]efore viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure."[5] Twenty years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed viability as the touchstone of its abortion jurisprudence. The Court stated that "no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips."[6] In 2007, in Gonzales v. Carhart, the Supreme Court again said that, before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy."[7] And in Whole Woman's Health v. Hellerstedt, handed down just last year, the Supreme Court reiterated its adherence to the viability framework, striking down two restrictions in a Texas statute that "place[d] a substantial obstacle in the path of women seeking a previability abortion."[8]

The Supreme Court has defined viability as "the time 'when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus'[s] sustained survival outside the womb, with or without artificial support.'"[9] The Court further has instructed that it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period. The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.[10]

If enacted, HB 1473 would impose, with only limited exceptions, a flat rule prohibiting abortions after 20 weeks following fertilization, the point when, according to the bill's preliminary clauses (and as reflected in the Act's title), evidence suggests that a fetus is capable of experiencing pain.[11] But whether that point is defined in terms of weeks or as the point at which the drafters contend a fetus can experience pain, it is before the time that fetuses are generally viable.[12] Accordingly, the undue-burden standard would apply and, because the Act would contravene settled Supreme Court precedent, it would very likely be struck down as unconstitutional.

I note that laws in other States similar to HB 1473 have been found unconstitutional. In 1996, the U.S. Court of Appeals for the Tenth Circuit struck down a Utah law that defined 20 weeks' gestation as the point of viability, ruling that the law "is directly contrary to ... Supreme Court authority."[13] It further explained:

The State's arguments to the contrary are disingenuous and unpersuasive because they are grounded on its continued refusal to accept governing Supreme Court authority holding that viability is a matter to be determined by an attending physician, and that until viability is actually present the State may not prevent a woman from choosing to abort.[14]

In 2013, the U.S. Court of Appeals for the Ninth Circuit struck down an Arizona law that prohibited abortions after 20 weeks, explaining that there was "no doubt that the twenty-week law operates as a ban on pre-viability abortion and that it cannot stand under the viability rule enunciated repeatedly by the Supreme Court, this circuit, and other circuits."[15] The Supreme Court declined to disturb the result in that case.[16] And in 2015, the Ninth Circuit struck down a similar law enacted by Idaho because it "prohibits abortions of fetuses of twenty or more weeks postfertilization .... regardless of whether the fetus has attained viability."[17] It found the statute unconstitutional because it "place[d] an arbitrary time limit on when women can obtain abortions."[18]

Conclusion

It is my opinion that, if enacted, HB 1473 would not withstand constitutional scrutiny. The Act would impose a general prohibition on a woman's ability to have an abortion prior to viability, and therefore would impose an undue burden on a woman's right to choose to have an abortion, in violation of prevailing Supreme Court precedent. If enacted, the legislation would likely result in a significant, costly, and successful constitutional challenge against the Commonwealth.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] H.B. 1473, 2017 Reg. Sess., lines 119-22, available at http://lis.virginia.gov/cgi-bin/legp604.exe?171+ful+HB1473+pdf.

[2] Id., lines 136-61.

[3] 410 U.S. 113 (1973).

[4] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).

[5] Id.

[6] Id. at 861. See also id. at 871 (opinion of O'Connor, Kennedy, and Souter, JJ.) ("The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.").

[7] 550 U.S. 124, 146 (2007) (quoting Casey, 505 U.S. at 879).

[8] 136 S. Ct. 2292, 2300 (2016). See also id. at 2320 ("[W]e ... use 'viability' as the relevant point at which a State may begin limiting women's access to abortion for reasons unrelated to maternal health.").

[9] MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015) (quoting Colautti v. Franklin, 439 U.S. 379, 388 (1979)), cert. denied, 136 S. Ct. 981 (2016). See also Casey, 505 U.S. at 870 (stating that viability "is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb").

[10] Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 64 (1976).

[11] See, e.g., H.B. 1473, 2017 Reg. Sess., lines 43-44.

[12] See Stenehjem, 795 F.3d at 773 (accepting declarations from two doctors that "viability occurs at about 24 weeks"); Isaacson v. Horne, 716 F.3d 1213, 1218 n.4 (9th Cir. 2013) ("The parties to this suit agree that no fetus is viable at twenty weeks gestational age and that a healthy fetus typically attains viability at twenty-three or twenty-four weeks, at the earliest."), cert. denied, 134 S. Ct. 905 (2014); see also Casey, 505 U.S. at 860 ("[V]iability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, [or] at 23 to 24 weeks, as it sometimes does today ....").

[13] Jane L. v. Bangerter, 102 F.3d 1112, 1115, 1118 (10th Cir. 1996), cert. denied, 117 S. Ct. 2453 (1997).

[14] Id. at 1118.

[15] Isaacson, 716 F.3d at 1226.

[16] 134 S. Ct. 905 (2014).

[17] McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015).

[18] Id. See also Stenehjem, 795 F.3d at 773 (finding unconstitutional a North Dakota statute prohibiting abortions after point when fetal heartbeat can be detected because it was "bound by Supreme Court precedent holding that states may not prohibit pre-viability abortions"); Edwards v. Beck, 786 F.3d 1113, 1115, 1117 (8th Cir. 2015) (affirming permanent injunction against enforcement of the Arkansas Human Heartbeat Protection Act; noting that "[b]y banning abortions after 12 weeks' gestation, the Act prohibits women from making the ultimate decision to terminate a pregnancy at a point before viability"), cert. denied, 136 S. Ct. 895 (2016).