In January, Virginia Attorney General Mark Herring issued a formal opinion declaring Virginia’s Pain-Capable Unborn Child Protection Act — a bill that generally bans abortions after 20 weeks’ gestation — unconstitutional. His opinion points to several federal circuit court cases striking down similar laws in other states, concluding such laws contravene the viability rule laid out in Roe v. Wade.
As far as it goes, Herring’s opinion is legally correct: With virtually no exception, 20-week abortion bans have not had a great run in the federal courts. That said, Herring avoids mentioning a critical weakness in abortion jurisprudence, one that is already eroding his opinion’s shelf life.
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