Today in Futility

Ohio, and Mike Huckabee, endorse a ban on abortions keyed to the fetal heartbeat, generally manifesting at six to seven weeks. The only problem? It’s clearly unconstitutional, as it imposes an “undue burden” on a woman’s right to choose.

A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.

Planned Parenthood v. Casey, 505 U.S. 833 (1992).  Casey rejected the trimester framework of Roe v. Wade — under which this first-trimester ban would clearly fail — but early and total bans fare no better under Casey… although the issue hasn’t been tested.



  1. Fuck heartbeat, it should be keyed to the only thing that matters: frontal lobe activity.

  2. Steve, that would be fascinating, but then there’d be a ton of living breathing adults who would fail . . .

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