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Post-Viability Abortion Restriction

Minnesota has an unconstitutional and unenforceable provision in its law that no abortion may be provided after the first half of the gestation period (20 weeks) unless necessary to preserve the woman's life or health.  Consistent with sound medical practice, the physician must provide such a procedure "under circumstances which will reasonably assure" fetal survival and a second physician must be "immediately accessible."  Minn. Stat. Ann. §§ 145.411 (subd. 2) (Enacted 1974), 145.412 (subd. 3) (Enacted 1974), 145.423 (subd. 2) (Enacted 1976).

A court held that the provision restricting abortion after 20 weeks is unconstitutional because "whether or not a fetus is viable must be left to the medical judgment of the physicians because the point of viability will vary from case to case."  Hodgson v. Lawson, 542 F.2d 1350, 1354 (8th Cir. 1976).

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 Minnesota's 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 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).

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