Analysis

Three reasons why the ‘viability’ rule in abortion law is unsound

preemie, abortion survivor, born alive

The alleged “viability rule” put in place by the United States Supreme Court is an arbitrary line which dictates when a state can restrict or prohibit abortion. But a new case brought by Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, is being heard this fall before the Court. Dobbs v. Jackson Women’s Health Organization centers around a Mississippi law which prohibits so-called previable abortions committed after 15 weeks and could challenge this alleged rule.

In her recently submitted brief in the case of Dobbs, Mississippi Attorney General Lynn Fitch described the so-called “viability rule” as a “baseless” premise. She pointed out that many decades have passed since the Court decided the cases of Roe v. Wade (nearly 50 years) and Planned Parenthood v. Casey (nearly 30 years), which both made far-reaching assumptions about viability.

“Like a right to abortion itself, a viability rule has no basis in the Constitution,” Fitch wrote.

Fitch is not alone in her position; multiple amicus briefs filed on the State’s behalf are also highly critical of this outdated and harmful “viability” standard, for three reasons

1. No basis in the Constitution

“There is no ‘point’ in pregnancy at which viability ‘occurs,'” wrote Life Legal Defense Foundation (LLDF) in a brief submitted in the case. “Viability is a prediction, not a point,” yet, “The Court [in Roe] defined viable as “potentially able to live outside the mother’s womb, albeit with artificial aid.”

AG Fitch’s argument is that Roe and Casey “do not provide persuasive support for a viability rule.” Roe, she said, “concluded that the State’s interest in unborn life becomes ‘compelling’ at viability ‘because the fetus then presumably has the capability of meaningful life outside the womb.'” She added that Casey defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.”

“Each explanation boils down to a circular assertion: when an unborn child can live outside the womb then the State’s interest is compelling because the unborn child can live outside the womb,” Fitch wrote. “That explanation ‘mistake[s] a definition for a syllogism’ and is linked to nothing in the Constitution.”

The Catholic Medical Association (CMA) also filed an amicus brief, stating, “The court’s selection of viability as the time in pregnancy to assign value to the unborn child was an arbitrary policy choice.” CMA et al added that “although viability was ultimately settled upon by the Court, Justice Blackmun described both the ‘end of the first trimester’ and ‘viability’ as being ‘equally arbitrary.'”

“The internal papers of the Court also suggest that the choice of viability was based primarily on pragmatic policy concerns and personal preferences with respect to allowing more time to obtain an abortion. It was not based on any evidence presented to the Court or on any constitutional or statutory text,” CMA et al added.

CMA et al accused the Court of “acting in a quasi-legislative capacity — making judgments not about what any duly enacted law said, but rather, on what it deemed to be ‘practical’ solutions to social problems related to unwanted pregnancies.”

According to CMA et al, “the Court [did not] attempt to explain why the State’s interest in protecting unborn human life just prior to viability should be nonexistent and then suddenly appear just after viability, if it is growing in substantiality throughout pregnancy.”

LLDF also noted in its brief, “… [T]his Court has never attempted to elaborate on why a child’s ability or inability to survive outside the womb in the case of a premature delivery has any bearing on the state’s interest in protecting the child from being killed inside the womb.”

2. ‘Viability rule’ inconsistent with other areas of law

According to the brief filed by the Alabama Center for Law and Liberty (ACLL), “The viability rule does not comport with other areas of the law addressing the rights of unborn children.” ACLL notes several areas of law that recognize and/or protect the rights of the preborn child, such as criminal law, law of torts, property, guardianship, family, and healthcare law:

  • Twenty-seven (27) states criminalize fetal homicide regardless of the child’s gestational age
  • Of 27 states that allow capital punishment, four say that if a woman who is pregnant is murdered, this fact could be used to justify the death penalty.
  • Of the 27 states authorizing the death penalty, 22 do not allow a pregnant woman to be executed until she has delivered.
  • Forty (40) states allow wrongful death suits if a child “sustained post-viability injuries that caused his or her death… Thus, with the exception of wrongful death actions, the majority of states do not use viability as a limiting principle as to whether the child may recover damages for injuries done to him or her in utero.”
  • Common law recognized preborn children could have property rights.
  • Guardianship law recognized the personhood of preborn children.
  • In family law, eight states have applied child-protection laws to preborn children.
  • Five other states have said preborn children can be “victims of abuse and neglect.”
  • In health care law, “most states prohibit the withdrawal or withholding of life-sustaining treatment for a pregnant woman, regardless of her advance directive.”

3. Viability is a moving target

LLDF claims the case of Colautti v. Franklin “assigned the role of assessing the viability of the fetus to the ‘responsible attending physician,’ i.e., the abortion provider.”

CMA et al said the same, writing in their brief, “The criteria for assessing viability remain both undefined and undefinable. And the Court has determined that the purely subjective decisions that the abortion providers make may not be questioned.”

“However,” LLDF noted, “to the extent any given abortion provider has relevant specialized training, such training would be in obstetrics, not neonatology.” The legal group argued, “Viability as determined by the abortion provider is ‘workable’ only in the sense that it is unenforceable, and thus does not give rise to difficult cases. It ‘works’ for the abortion industry, but not for the state trying to protect unborn children.”

The court’s “viability rule” will “remove[s] the states’ ability to account for advances in medical and scientific technology that have greatly expanded our knowledge of prenatal life,” AG Fitch wrote.

CMA et al noted, “Viability is not a ‘simple limitation’ or determination…Take gestational age, for example. The most accurate method for determining gestational age is by using fetal ultrasound during the first trimester, based on crown-rump length. However, even at this stage of pregnancy, the margin of error is plus-or-minus five to seven days. Other less accurate methods of determining gestational age, such as those based on physical examination or the patient’s recollection of the first day of her last menstrual period, may have much greater margins of error.”

“Our humanity is a constant. It does not vary over time under different circumstances. It is our nature, not a feature of our environment or our accomplishment. It does not vacillate based on the state of our technology, including the technology that lets a fetus live outside the mother’s womb,” argued the National Catholic Bioethics Center (NCBC) in its Dobbs brief.

“If we are defined by our nature, ‘equality’ is a meaningful fundamental principle. If we are defined by our development, it is not,” NCBC wrote, also asking the Court, “When Roe was decided, just fifty years ago, viability — and hence personhood in the Roe Court’s eyes — was gained at about twenty-eight weeks. Now it is about twenty-three weeks. Did human nature really change to that extent in such a short period of time?”

NCBC noted, “It is only because each one of us is a human being by nature that we are all equally worthy of governmental protection. The development or maturation of human faculties does not make one human. If it did, young children would not be considered human, for many of their faculties do not mature for decades. This ‘constructivist’ view of human nature is a great rationale for infanticide, but it is a horrible rationale for equality or any other human right.”

Cleveland Lawyers for Life argued, “Roe’s formula is that once a child can survive outside the mother’s womb, the state can require her to keep it until birth. If the fetus cannot survive, she can have her pregnancy terminated, inevitably producing a dead child. The entire proposition is curiously contradictory. In effect, it says to a skipper of a lifeboat, ‘If there is someone in your boat who cannot swim, you may throw her overboard. But if she can swim, you must allow her to stay onboard until you reach shore.'”

But it was the NCBC which summed it all up simply: “Roe’s conception of our humanity as a technologically determined variable of ‘viability’ is utterly dehumanizing.”

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