Viability is arbitrary standard for abortions
In arguments over the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, one idea was front and center – viability. Mississippi’s law bans most abortions after 15 weeks of pregnancy, well before the court’s “viability” line at 24 weeks.
The idea that when a fetus can survive outside the womb is the point at which his or her right to life outweighs a potential mother’s interest in making choices about her own life has an attractive logic to it.
In last week’s arguments before the Supreme Court, the lawyer for Mississippi tried to make the line seem arbitrary and disconnected from the Constitution. Lawyers for the women’s health clinic and the Biden administration argued that the viability line was practical, principled and scientific.
As always with abortion, the problem is that they’re both right.
The 1973 Roe v. Wade decision tried to find a balance between the rights of women and the rights of their children, but there’s never a time when it is OK to condemn a woman to serve the needs of another against her will, and there is never a time when it is OK to kill an innocent child.
Likewise with viability, it is practical and scientific but untethered to the Constitution and arbitrary.
Viability is a practical line because almost all abortions in the United States occur well before the earliest a fetus can survive outside the womb. According to the Centers for Disease Control and Prevention, in 2019, 92.7% of abortions took place at or before 13 weeks while less than 1% took place at 21 weeks or later. Even with a 15-week ban, most abortions would go forward unaffected.
Viability is a scientific line because doctors are always working to save wanted babies born prematurely and have incredible resources to bring to bear. We know with great specificity how good a baby’s chance of survival is depending on when in the pregnancy they are born.
Viability is untethered to the Constitution because abortion is, too. Neither appears in the text or history of the Constitution. Indeed, one of the authors of the viability standard in the 1992 case Planned Parenthood v. Casey wrote in a 1983 dissent that the court was completely unqualified to update abortion regulations as medical science progresses.
That’s why the viability line is arbitrary. What abortions are legal under the framework depends on the pace of scientific advancement. The Washington Post reported that the “timeline (for viability) compressed by about one week every 10 years.” When Roe was decided in 1973, the earliest a baby could live outside the womb was 28 weeks; now it is common at 23 or 24 weeks and has even happened as early as 21 weeks.
In the 1983 case, Justice Lewis Powell wrote for the court majority, “It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future.”
This might be optimistic, but it isn’t outside the realm of possibility.
In any case, fundamental constitutional rights cannot depend on what doctors and scientists can do at a particular point in time.
If both the state of Mississippi and the abortion clinic opponents are right about viability, what does that mean for the court’s decision, expected next year? Don’t expect either side to be satisfied.