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Tipsheet

Federal Judge Finds North Carolina's 20 Week Abortion Ban Unconstitutional

AP Photo/Teresa Crawford

A federal judge found North Carolina’s ban on abortion after 20 weeks of pregnancy unconstitutional Tuesday. District Judge William Osteen has delayed his ruling on the ban for 60 days to give state lawmakers a chance to rewrite the abortion law or appeal the ruling.

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“This court declines to act in a manner that would deprive the North Carolina legislature the opportunity, in the first instance, to either pass legislation or challenge this decision on appeal, whichever they decide may be in the interests of the citizens they represent,” he said.

The judge wrote that his ruling "accords universally with those of other federal courts that have considered the constitutionality of twenty-week bans and similar week- or event-specific abortion bans."

The law had been updated by state lawmakers in 2015 to ban abortion at 20 weeks and Planned Parenthood filed a lawsuit challenging the law in 2016.

North Carolina is not alone in trying to restrict abortion to 20 weeks. Currently about 20 states have already passed a version of this legislation.

Republicans in Congress have also pushed for a national 20-week ban as many have pointed out that with improvements in technology premature babies have survived birth as early as 21 weeks. Recent studies have supported revisiting when fetal viability begins, given the earlier survival rates.

Micah Pickering, a boy born at 20 weeks of pregnancy, was obviously “viable” since he did survive birth and was able to advocate for the legislation on Capitol Hill.

Based on Micah’s case and others, The New York Times wrote in 2015, that a “study, of thousands of premature births, found that a tiny minority of babies born at 22 weeks who were medically treated survived with few health problems, although the vast majority died or suffered serious health issues. Leading medical groups had already been discussing whether to lower the consensus on the age of viability, now cited by most medical experts as 24 weeks.”

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The Roe v. Wade decision defined viable as “potentially able to live outside the mother's womb, albeit with artificial aid,” adding that “viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.”

However, the broadness of the Court’s definition of the term “viability” leaves much room for interpretation resulting in the different state laws on abortion.

The Court has even acknowledged that reality, writing in their 1979 Colautti v. Franklin decision that “different physicians equate viability with different probabilities of survival, and some physicians refuse to equate viability with any numerical probability at all.”

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