Post-Viability Abortion Restriction

Pennsylvania's post-viability abortion restriction provides that no abortion may be performed after the 23rd week of pregnancy unless the attending physician and another physician who has examined the woman concur in writing that the procedure is necessary to preserve the woman's life or to prevent a "substantial and irreversible impairment of a major bodily function."  The physician must use the abortion method most likely to result in fetal survival unless in the physician's good faith medical judgment that method poses a significantly greater risk of the woman's death or a "substantial and irreversible impairment of a major bodily function" of the woman than other available methods.  A second physician must attend a post-viability abortion.  18 Pa. Cons. Stat. Ann. § 3211 (Enacted 1989).

With respect to a previous version of this law, the U.S. Supreme Court held that the requirement that the physician use the abortion method most likely to result in fetal survival was unconstitutional because it required the woman to bear an increased medical risk in order to save the viable fetus.  Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 769 (1986).

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman.  NARAL Pro-Choice America opposes Pennsylvania's post-viability restriction because the health exception is dangerously narrow.  NARAL Pro-Choice America also opposes this law because it is unconstitutional to the extent that it prohibits pre-viability abortions by defining viability at 24 weeks.  A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body.  Roe v. Wade, 410 U.S. 113, 163 (1973).  Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age.  Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).