In 1973 the Supreme Court of the United States handed down the now infamous Roe v. Wade decision which invalidated laws restricting abortion in all 50 states. In Roe, the Court adopted a trimester framework for balancing what it saw as the competing interests of the state in protecting the life of the unborn child and the privacy interests involved in the decision to obtain an abortion.
In 1992, the Supreme Court reconsidered and reaffirmed “the essential holding of Roe” that states could not outright ban pre-viability abortions, but they were free to regulate abortions, even before viability, and even in the first trimester, as long as regulations did not place an “undue burden” on a woman’s right to obtain a pre-viability abortion. In Planned Parenthood v. Casey, the Court stated, “Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure” (emphasis added). And yet, “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Somewhat enigmatically, the Court added, “These principles do not contradict one another.”
What is viability?
Viability is defined as that point in the development of an unborn child at which he could potentially survive outside the womb, albeit with appropriate medical intervention. Children past 24 weeks’ gestation are usually considered viable, and medical advancements have seen children as young as 22 weeks’ and even 20 weeks’ gestation survive outside the womb.
Is it workable as a standard for when states have an interest in protecting unborn life?
On multiple occasions, the Supreme Court has reaffirmed that states do have an interest in protecting the life of an unborn child even before “the point of viability.”
For example, in Webster v. Reproductive Health Services, 492 U.S. 490, 519 (1989), the Supreme Court stated it could “not see why the State’s interest in protecting human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability.”
Who determines viability?
There are many problems with using the point at which a child could potentially survive outside his mother’s womb as the cutoff for when a state can or cannot regulate abortion, not least of which is the fact that the Supreme Court left the determination of whether a child is viable to the “woman’s responsible attending physician,” i.e., the abortionist. For the abortion industry, infant survival is a dreaded complication to be avoided. Abortionists are not experts in the survival of very premature children. In fact, they are the exact opposite. They are experts in their death—not their survival.
Doesn’t viability fluctuate?
Moreover, the point of viability is not a point at all, but a prediction—a prediction of whether this life is likely to survive outside the womb. It is affected by many factors, including the availability of modern medical resources, the immediate provision of medical care, the knowledge and experience of treating physicians in the treatment of very premature children, as well as the attitudes of treating physicians towards these tiny human beings.
Where premature children have access to quick, modern medical intervention, from physicians skilled, knowledgeable, and trained in the care of very premature children, children who only a decade or so ago could not have survived outside the womb are surviving and thriving. Moreover, where attitudes toward premature children are positive, and physicians cast no dispersions on their so-called “quality of life,” premature children are more likely to survive. They are a living challenge to the idea that there is such a thing as a “point” of viability.
Dobbs and Mississippi’s Gestational Age Act
A challenge to the Supreme Court’s jurisprudence of the “point of viability” is ripe, and Mississippi’s Gestational Age Act is ideal for making that challenge. In 2018, Mississippi’s Legislature passed H.B. 1510, which bans most abortions after 15 weeks, many weeks short of the 20-24 week point at which unborn children are typically considered “viable.”
The Gestational Age Act protects legitimate state interests in the life of the unborn, in regulating the medical profession, in preventing the barbaric practice of late-term abortion procedures which require the violent dismemberment and mutilation of unborn children, and in protecting the health of pregnant women.
Jackson Women’s Health Organization, the only licensed abortion clinic in the state of Mississippi, challenged the law in federal court, and the district court blocked Mississippi from enforcing the law. Mississippi was not allowed to present evidence of its legitimate state interests. The court claimed that such evidence was irrelevant because the law conflicted with Roe and Casey’s prohibition on abortion bans prior to viability.
Thomas Dobbs, state health officer of the Mississippi Department of Health, appealed on behalf of the state, and in 2019 the Fifth Circuit Court of Appeals affirmed the district court’s decision to block the Mississippi law, holding that, under Roe and Casey, there is a categorical right to a pre-viability abortion.
The State of Mississippi petitioned the United States Supreme Court, stating its first question for the Court to consider as “whether all pre-viability prohibitions on elective abortions are unconstitutional.” The Supreme Court granted certiorari, limiting the case to the single question of pre-viability prohibitions, and heard oral arguments on the matter on Wednesday, December 1 of last year. The court is expected to hand down its opinion on the matter mid-2022.
[Published in Winter 2022 issue of Lifeline.]