Viability

It is no secret that abortion is a contentious issue in the United States. A couple of recent news articles demonstrate this, such as Vanity Fair’s “Missouri Republican Proposes Antiabortion Bill That Would Literally Kill Pregnant People,”¹ and USA Today’s “Biden Gave His Blessing to Radical Abortion Law. Both the President and the Bill Failed.”² Doubtless, there has been a recent push by pro-life advocates across the country to constrict abortion. But amid the resulting back and forth, it can be difficult to figure out what is going on. The aim of this article is not to argue about whether abortion should be permitted or not. Rather, the aim is to examine the U.S. Supreme Court’s viability standard regarding abortion, which it first adopted in Planned Parenthood v. Casey (1992). There are three main issues with the current viability standard. One, it has moved over time. Two, it is difficult to define. Three, it is vulnerable to challenges, which is demonstrated by the ongoing case Dobbs v. Jackson Women's Health Organization. The likely result is that as the definition of viability expands due to advances in medical technology, abortion access will become more constricted.

Roe v. Wade (1973) lays out the state’s ability to regulate abortion. It states that in the first trimester of pregnancy, the state may not regulate the abortion decision. Rather, only the pregnant woman and her attending physician can make that decision. In the second trimester, the state has the option to impose regulations on abortion that are “reasonable” related to maternal health. Lastly, in the third trimester, once the fetus reaches the point of “viability,” a state has the option to regulate abortions or prohibit them entirely. However, the laws must contain exceptions for cases when abortion is necessary to save the life or health of the mother.³

There is a problem in this ruling that leaves abortion access vulnerable, especially as time goes on. When the case was decided by the Supreme Court in 1973, the third trimester of pregnancy (defined as 28 to 40 weeks) was widely seen as the threshold of “viability,” meaning that a child born at this stage could be expected to survive.⁴ But basing the state’s ability to regulate abortion based on trimesters of pregnancy soon led to a point that needed clarification. In Planned Parenthood v. Casey, the Supreme Court added that the state could not impose an “‘undue burden,’ which it defined as a ‘substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’”⁵ Whereas Roe v. Wade had indicated its view that fetal viability occurred after 28 weeks given its use of the third trimester benchmark, Planned Parenthood v. Casey did not opine on when fetal viability was. Rather, it merely stated that the state cannot impose an “undue burden … before the fetus attains viability.”

The difficulty with basing a legal framework on “viability” is that it is inherently unstable. In the decades since these two cases were decided, fetal viability has continued to be defined as earlier in pregnancy. When Roe was decided, babies born at 28 weeks were thought to have little chance of survival. Yet in the following decades, that timeline compressed by about one week every 10 years as a result of medical advances and a better understanding of treatments.⁶ In one notable case from the past year, Curtis Means in Alabama broke the world record for the most premature baby to survive.⁷ The baby was born in Alabama in July 2020 at 21 weeks and a day, weighing 14.8 ounces.⁸

This begs the question: how should viability be defined? Several current state and medical standards use 23 to 24 weeks as the standard for viability, but new studies published in the last few years have challenged that view and argued that it should be 22 weeks. As a result, more institutions are providing treatment to babies born at that gestational age.⁹ If based on reasonable likelihood of survival, the legal definition of “viability” would be 22-24 weeks. But therein lies the problem: the court has not defined “viability.” Whereas the third trimester standard in Roe v. Wade (1973), though debatable, was fixed at 28 weeks, the viability standard in Planned Parenthood v. Casey (1992) has never been fixed. Some have viewed viability as based on reasonable likelihood of survival, meaning 22-24 weeks. Others have opted for the earliest possible case of premature survival setting the standard, referring to cases such as those of Curtis Means (21 weeks). Lastly, some have opted for the earliest theoretical time at which a premature baby could survive. Since that is speculative, it has been a source of much contention.

Still, pro-life advocates have taken note of this vulnerability in existing Supreme Court precedent, as seen in the Mississippi abortion case Dobbs v. Jackson Women's Health Organization that was just heard by the Supreme Court this past December. It is a result of Mississippi’s Gestational Age Act (2018), “which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age.”¹⁰ However, a district court prevented Mississippi from enforcing the law, finding that the state had not provided evidence that a fetus would be viable at 15 weeks. The district court viewed that as sufficient for blocking the law since in its view Supreme Court precedent prohibits states from banning abortions prior to viability. After Mississippi appealed the ruling, the U.S. Court of Appeals for the Fifth Circuit affirmed it.¹¹ Mississippi appealed to the U.S. Supreme Court, where the case is currently pending. A final ruling is expected by June of this year.

The Dobbs case is a direct challenge to the Supreme Court’s viability standard. But, as mentioned at the outset, there are three main issues with the current viability standard. Not only has it moved over time, but it is difficult to define. And because of these first two issues, the current viability standard is vulnerable to challenges. A natural question thus arises: is viability a workable framework going forward? At first it would appear to not be, but if viability is not used, then what should be? Regardless of one’s opinions on the issue, it seems likely that as long as fetal viability is the standard used in assessing whether an abortion is permitted, abortion access will continue to become more constricted as time goes on.

References

¹ Bess Levin. “Missouri Republican Proposes Antiabortion Bill That Would Literally Kill Pregnant People.” Vanity Fair, Vanity Fair, 11 Mar. 2022, https://www.vanityfair.com/news/2022/03/brian-seitz-missouri-abortion-ectopic-pregnancy.

² Maureen Ferguson. “Biden Gave His Blessing to Radical Abortion Law. Both the President and the Bill Failed.” USA Today, Gannett Satellite Information Network, 12 Mar. 2022, https://www.usatoday.com/story/opinion/columnist/2022/03/12/biden-endorsed-radical-abortion-law/9366011002/.

³ Roe v. Wade, 410 U.S. 113 (1973)

⁴ “Third Trimester of Pregnancy: Fetal Development.” American Pregnancy Association, 9 Dec. 2021, https://americanpregnancy.org/healthy-pregnancy/pregnancy-health-wellness/third-trimester/.

⁵ Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

⁶ Ariana Eunjung Cha and Rachel Roubein. “Fetal Viability Is at the Center of Mississippi Abortion Case. Here's Why.” The Washington Post, WP Company, 19 Jan. 2022, https://www.washingtonpost.com/health/2021/12/01/what-is-viability/.

⁷ Sarah Polus. “Alabama Boy Sets World Record for Most Premature Infant to Survive.” TheHill, The Hill, 11 Nov. 2021, https://thehill.com/homenews/news/581078-alabama-boy-sets-world-record-for-most-premature-infant-to-survive.

⁸ Ariana Eunjung Cha and Rachel Roubein. “Fetal Viability Is at the Center of Mississippi Abortion Case. Here's Why.” The Washington Post, WP Company, 19 Jan. 2022, https://www.washingtonpost.com/health/2021/12/01/what-is-viability/.

⁹ Ibid.

¹⁰ “Dobbs v. Jackson Women's Health Organization.” Oyez, www.oyez.org/cases/2021/19-1392. Accessed 12 Mar. 2022.

¹¹ Ibid.