Life Legal files SCOTUS brief demolishing Roe’s viability standard

Life Legal filed an important amicus brief today in Dobbs v. Jackson Women’s Health Organization in support of Mississippi’s “Gestational Age Act,” which prohibits abortion after 15 weeks. We filed the brief on behalf of Dr. Robin Pierucci, a neonatologist and bioethicist who is a nationally recognized expert in care for “micro-preemies,” who are very young premature babies born during the second trimester of pregnancy.

Our brief is an attack on the unworkable “viability” standard adopted by the Supreme Court in Roe v. Wade and affirmed in Planned Parenthood v. Casey, which has cost the lives of millions of babies. These cases rely on a highly subjective determination of a baby’s “capability of meaningful life outside the mother’s womb.”

But who is to say which life has meaning? The Court? The State? The abortionist?

Instead, we urge the Court to look to its own ruling in Cruzan v. Director, Missouri Department of Health, where it found that a state does not have to make judgments about the “quality” of an individual’s life but can “assert an unqualified interest” in protecting human life.  The Cruzan case involved a disabled young woman whose parents wanted to remove her feeding tube. The Court did not accept the parent’s argument that their daughter’s lack of a sufficient “quality of life” was a reason to kill her and held that a higher standard of evidence was required before someone could make the irreversible decision to end the life of a person who cannot communicate his or her wishes. In so doing, the Court affirmed the state’s interest in protecting human life, without regard to the perceived worth of that life.

Our brief also takes issue with the holdings in Roe and Casey that try to define viability as a particular point in time at which a baby is capable of surviving apart from its mother. Life Legal was recently contacted by several parents whose premature babies were denied life-saving care, even though the parents begged doctors to save them. We filed complaints with the Department of Health and Human Services on their behalf and then provided HHS with the latest research in second trimester preemies and suggestions for further action to protect babies. You can read our HHS paper here.

Studies have demonstrated that a baby’s survivability does not depend only on reaching a specific gestational age, but on the medical care that is available and especially on the attitudes of physicians and hospitals regarding quality of life and disability. For example, Providence Women and Children’s Services of Oregon categorically denies medical care for babies before at 22 weeks or earlier, regardless of the parents’ wishes. Not surprisingly, its survival rate for those babies is 0%, whereas the survival rate for 22-week babies is as high as 60% in other hospitals.

Another Supreme Court case, Colautti v. Franklin, held that the abortionist should determine whether a baby is viable. This is absurd. Abortionists have a financial—and often philosophical—interest in pushing the age of viability as far out as possible. Also, to the extent that they have any specialized training at all—and most have none—it is in obstetrics, not neonatology. In some states, like California, abortionists do not even have to hold a physician’s license.

“Given Justice Robert’s opinion in the recent June Medical Services case that relied so heavily on Robert’s blind allegiance to Supreme Court precedence (stare decisis), we believe it is critical to present sound legal arguments as to why the Court’s holdings regarding viability in Roe, Casey, and Colautti are not valid and are should long ago have been overturned,” noted Life Legal Executive Director Alexandra Snyder. “The current viability framework only works for the abortion industry. It certainly doesn’t work for unborn children and states trying to protect them.”