Academic journal article Missouri Law Review

Raising Our Standards: Rethinking the Supreme Court's Abortion Jurisprudence

Academic journal article Missouri Law Review

Raising Our Standards: Rethinking the Supreme Court's Abortion Jurisprudence

Article excerpt

MKB Management Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015), cert. denied, 136 S. Ct. 981 (2016).


The controversy regarding abortion rights in the United States is perhaps the single most polarizing and heated domestic issue facing our nation today. According to the most recent Gallup poll recording American's views on abortion, twenty-nine percent of Americans believe abortion should be legal in all circumstances, fifty-one percent believe abortion should be legal in limited circumstances, and nineteen percent believe abortion should be illegal in all circumstances. (1)

Abortion is an incredibly sensitive subject to countless Americans with personal beliefs often stemming out of closely-held ideologies rooted in religion and personal liberty, and any decision on the subject should be made with extraordinary care. As such, when the Supreme Court of the United States is determining issues on this matter, it should do so with the utmost consideration, analyzing all implications of the potential reach of its decisions. Recently, Professor Randy Beck summarized the problem with the Supreme Court's current abortion standard well:

   If the Court asks citizens to lay aside deeply held political and
   social views in light of "a common mandate rooted in the
   Constitution," it is crucial to demonstrate that constitutional
   mandate to the contending parties. Drawing a line as far-reaching
   and consequential as the viability rule without a convincing
   constitutional rationale is more likely to aggravate the national
   division over abortion than to quell it. (2)

* B.A., University of Missouri, 2014; J.D. Candidate, University of Missouri School of Law, 2017; Associate Editor, Missouri Law Review, 2016-2017. I would like to extend a special thank you to Associate Dean Paul Litton and the entire Missouri Law Review staff for their support and guidance in writing this Note.

While the morally "right" or "wrong" issue surrounding abortion could be argued at length, this Note discusses taking a more reasonable approach in the analysis of abortion rights. In implementing standards for abortion rights, the Supreme Court should either apply consistent measures of a fetus's life that will maintain its practical implications over time or allow states to use the resources they possess to do so if the Court will not.

Part II of this Note explores the Supreme Court's abortion jurisprudence by discussing MKB Management Corp. v. Stenehjem, which declared a North Dakota statute barring abortions after a fetus has a detectable heartbeat to be unconstitutional. Next, Part III analyzes the relevant history surrounding abortion rights and the rationale behind the precedent relied on in Stenehjem. Part IV examines the U.S. Court of Appeals for the Eighth Circuit's decision to void the statute, along with the Eighth Circuit's vehement plea for a new abortion standard. Finally, Part V of this Note reveals flaws in the Supreme Court's current abortion jurisprudence and concludes with an outlook on future challenges to the abortion standard.


In 2013, North Dakota passed House Bill 1456 ("H.B. 1456"), later codified in North Dakota Century Code [section] 14-02.1, which expanded the state's prohibition on abortion to the point in a mother's pregnancy where the fetus has a detectable heartbeat. (3) Prior to this bill's enactment, North Dakota prohibited abortion "[after the point in pregnancy when the unborn child may reasonably be expected to have reached viability," except when necessary to preserve the life or health of the mother. (4)

In restricting the availability of abortions, North Dakota's H.B. 1456 contained two operative provisions. The first provision required a physician performing an abortion to "determin[e], in accordance with standard medical practice, if the unborn child the pregnant woman is carrying has a detectable heartbeat. …

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