Last July Life Legal filed an amicus brief with the Supreme Court, urging it to take up a case involving Mississippi’s ban on abortions after fifteen week’s gestation: Dobbs vs. Jackson Women’s Health Organization. This May, the Court announced it would hear the case.
Dobbs is the first, and only, Supreme Court case since Roe v. Wade involving a gestational age-based abortion ban.
In its 1992 Planned Parenthood vs. Casey decision, the Supreme Court first announced the undue burden and viability standards that now govern the lower courts’ decisions concerning abortion regulation. In essence, these standards have been interpreted to mean that (1) women have a constitutional right to abortion before their unborn children are viable outside the womb, and (2) states are prohibited from regulating or restricting abortion to the point that it places an undue burden on women seeking to abort their children pre-viability.
For twenty years after Casey, states passed practically no laws attempting to ban abortion. Instead of bans, pro-life legislatures crafted laws to regulate the abortion industry (i.e. clinic building codes, abortionist certifications, reporting requirements) or to influence the woman’s decision whether to have an abortion (informed consent, waiting periods, ultrasound requirements, parental involvement for minors). When the laws were challenged in court, the pro-life attorneys typically argued that the regulations are compatible with Roe and Casey and did not place an undue burden on women seeking abortions. What exactly an “undue burden” is has been rehashed multiple times, most recently in Whole Woman’s Health vs. Hellerstedt (2016) and June Medical Services vs. Russo (2020).
Starting in 2013, states began more directly challenging Roe by passing bans on abortion after the baby’s heartbeat can be detected. Some laws required that an abortionist listen for a heartbeat. Others set a gestational limit at which a heartbeat can usually be detected, such as six weeks, and banned all or most abortions after that point. These laws were all blocked or struck down by courts as incompatible with Roe. The Supreme Court declined review in all of the heartbeat bill cases, and the laws remain unenforceable.
Dobbs does not concern a heartbeat bill, but it does seek to upend the accepted understanding of the undue burden and viability standards. The state of Mississippi argues in Dobbs that while the Court ruled in Roe and Casey that a state’s interest in protecting the lives of the unborn is insufficient to justify preventing women from obtaining abortions before viability, Mississippi’s interest in not only protecting the lives of the unborn, but also in protecting the integrity of the medical profession (killing babies after 15 weeks becomes exponentially more gruesome) and in protecting women’s health (maternal mortality following an abortion increases greatly after the first trimester) justifies banning abortion after 15 weeks.
In Dobbs, the Supreme Court will decide one question: whether all prohibitions on pre-viability elective abortion are unconstitutional.
Life Legal’s amicus brief, filed on behalf of neonatologist Robin Pierucci, M.D., takes aim at the viability standard. In urging the Court to take up Dobbs, Life Legal pointed out that the very notion of “pre-” or “post-” viabiity is absurd, because there is no “point” of viability in pregnancy. The biggest determining factor for survival in a baby born between 22 and 26 weeks’ gestation is the timing and quality of medical care provided after birth.
To make this point, Life Legal cited two institutions in its brief, the University of Iowa and Providence Women and Children’s Services of Oregon, which have opposing policies toward premature babies born at 22 weeks. The university provides immediate active treatment to all babies born at 22 weeks and sees 60% percent of them survive. Providence refuses treatment to babies born at 22 weeks and sees all of them die. Providence, therefore, is contributing to the statistics that indicate a poor prognosis for preemies, which in turn reinforces the idea that providing medical care for them is futile.
Other factors that play significant roles in a preemie’s chance of survival include whether or not the attending physicians are experienced in caring for preemies, whether they believe treating early preemies is worth the cost and effort, and what they believe about the quality of life of the babies who survive but have disabilities.
Even babies born before 22 weeks have a chance at survival if given proper treatment. Richard Hutchinson was born last year at 21 weeks 2 days, weighing 11.9 ounces, and just celebrated his first birthday. “Richard is the youngest baby I have ever had the honor to care for,” his neonatologist told media outlets.
“Viability depends on myriad factors that vary and fluctuate both before and after birth, from the physical to the philosophical, from the personal to the institutional to the systemic,” the brief summarized.
More importantly, the Court has never given a reason why viability (even as a hypothetical point) should be the determining factor in whether or not an abortion restriction is constitutional. The brief quotes from Justice Antonin Scalia’s dissent in Casey, in which he noted that the very concept of viability is arbitrary and unconstitutional and questioned why “viability” was understood to be when a baby could be kept alive outside the mother with the current technology, rather than when a child can feed himself.
Building on Scalia’s analogy, Life Legal’s brief discusses the concept of a “pool-safe” child, that is, a child who has some ability to swim and a likelihood of survival on his own if he falls into a swimming pool. Comparing “viability” to “pool-safe,” Life Legal argued that allowing states to restrict abortions only post-viability is equivalent to allowing states to legally protect the lives of pool-safe children, but prohibiting them from interfering if a child who cannot swim is forcibly drowned.
Now that the Supreme Court has agreed to hear the case, Life Legal will file another amicus brief. In addition to highlighting the illogic of the viability standard, the brief will point to historical legal arguments that unborn children are persons under the Fourteenth Amendment deserving of affirmative protection under federal law. There is no expectation that the Court would go that far in this case, but raising the argument may help some justices see that a solid “middle ground” would be reversing Roe and returning the issue to the states, rather than continuing in its self-appointed role of the National Abortion Regulation Control Board.
Both pro-life and pro-abortion groups recognize that the Court’s ruling in Dobbs could overturn Roe vs. Wade. Pro-abortion groups are generating heated rhetoric as if this outcome were inevitable, while pro-life groups are cautiously optimistic. Either way, it is unlikely that the Court will release a decision before June 2022.