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Post-Viability Abortion Restriction

Delaware's post-viability restriction states that no abortion may be provided after the 20th week of gestation unless continuation of the pregnancy is likely to result in a woman's death.  Del. Code Ann. tit. 24, § 1790(b)(1) (Enacted 1969; Last Amended 1995).

The Delaware attorney general has issued an opinion stating that this provision is inconsistent with Roe v. Wade and therefore invalid and has issued a statement of policy declaring that violations will not be prosecuted.  The opinion notes that this provision prohibits abortion services unless necessary to save the woman's life or at other certain times.  Del. Op. Att'y Gen. No. 73-030 (Apr. 12, 1973); Statement of Policy, Attorney General of Delaware (Mar. 24, 1977).  See Del. Women's Health Org. v. Wier, 441 F. Supp. 497, 498-99 n.9 (D. Del. 1977).

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman's life and health.  NARAL Pro-Choice America opposes Delaware's law because it lacks a health exception.  NARAL Pro-Choice America also opposes this law because it is unconstitutional to the extent that it prohibits pre-viability abortion by defining viability at 20 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 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).

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