The Supreme Court has scheduled oral argument in a major abortion case before the end of the year. On December 1, the Court will hear arguments in Dobbs v. Jackson Women’s Health, in which abortionists challenged Mississippi’s ban on abortion after 15 weeks. The Court’s ruling could limit or even overturn Roe v. Wade.
Dobbs is the first Supreme Court case since Roe involving a gestational age-based abortion ban. While the Court has held that states have some interest in protecting the lives of unborn children, such protection is negligible until babies reach the “point of viability.” Even after that point, the life of the child gives way to the “health” of the mother, defined broadly to include all her circumstances.
Life Legal filed a Friend of the Court or amicus brief in the Dobbs case on behalf of neonatologist Robin Pierucci, M.D., challenging the viability standard as arbitrary and unconstitutional. We argue that the determining factor for survival in babies born prematurely is not the presumed standard for viability, which can range from 22 to 26 weeks, but rather the willingness – or unwillingness – of hospitals to provide care to babies born early.
We cite two institutions in our brief that have opposing policies toward babies born at 22 weeks. The University of Iowa provides active treatment to all babies born at 22 weeks and sees 60% percent of them survive. Providence Women and Children’s Services of Oregon categorically refuses treatment to babies born at 22 weeks, which means they all die. Their prognosis has nothing to do with the age of viability; it has everything to do with the attitude of the hospital toward certain unborn children.
Viability is an unworkable standard to begin with and advancing technology is rendering the standard meaningless.
Today, the United States Department of Justice filed an amicus brief in support of Jackson Women’s Health Organization, Mississippi’s last remaining abortion mill. The government claims it has an interest in making sure the viability standard is upheld, so that women can continue to pay to have their fully developed babies dismembered. Life Legal has worked with pro-lifers in Jackson, MS, for years to shut down the mill, citing numerous safety violations and botched abortions. We are extremely disappointed that the Biden administration has chosen to side with abortionists rather than protect the most vulnerable among us.
The Court has never explained why viability should determine whether or not a state may protect unborn life. Life Legal’s brief quotes Justice Antonin Scalia, who found the very concept of viability to be absurd:
“Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.”
Because Chief Justice John Roberts tends to decide cases on the basis of past Court opinions (the doctrine of stare decisis), we provided a framework to guide his decision making in Dobbs. In a 1990 case, Cruzan v. Director, Missouri Department of Health*, the Supreme Court held that states not only have an interest in protecting an individual’s right to life, but also have an interest in life itself.
This is consistent with the Court’s finding in Roe that states have an “important and legitimate interest in protecting the potentiality of human life.” Inexplicably, the Court in Roe determined that the protection of unborn life only became compelling (a higher legal threshold than “important and legitimate”) at the age of viability, when the child had “capability of meaningful life outside the mother’s womb.”
In Cruzan, the Court rejected the idea that some human lives are more meaningful than others and held that states do not have to “make judgments about the ‘quality’ of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life.”
Our message to the Supreme Court as it prepares to hear oral argument in Dobbs is to abandon the age of viability standard and replace it with the medically updated and philosophically consistent standard of an “unqualified” state interest in protecting life that this Court upheld in the 1990 case of Cruzan.
*Nancy Cruzan was a young woman who suffered a severe brain injury after a car accident that left her dependent on a feeding tube for nutrition and hydration. Her parents sought to remove the feeding tube and end her life, but hospital officials refused without a court order. The Supreme Court held that incapacitated people were not able to consent to their own death by dehydration and starvation. Without “clear and convincing” evidence that Cruzan herself desired treatment to be withdrawn, the Court found the State of Missouri’s actions designed to preserve human life to be constitutional.