WASHINGTON — The U.S. Supreme Court has taken up a case that will directly explore the viability standard, set forth in the 1973 Roe v. Wade decision, permitting abortion until the unborn child can survive outside the womb — and pro-life advocates are hopeful that the case will increase the authority of the states to enact laws limiting abortion pre-viability.

Dobbs v. Jackson Women’s Health Organization explores the constitutionality of a Mississippi law prohibiting abortion after 15 weeks asking “whether all pre-viability prohibitions on elective abortions are unconstitutional.” The case is the first time that the high court will directly address the constitutionality of a pre-viability prohibition on abortion, Katie Glenn, government affairs counsel at Americans United for Life, told the Register. 

Katherine Talalas, assistant director for pro-life communications at the U.S. Conference of Catholic Bishops, told the Register that this case “is the biggest case on abortion in 30 years” because, “depending on how the court decides, this case could have tremendously positive impacts, protecting pro-life laws in the states and innumerable innocent lives.” 

“This is the most advanced pro-life bill that the Supreme Court is taking up in a very long time,” Tom McClusky, president of March for Life Action, told the Register. “A lot of the excitement is because the Supreme Court has certainly changed, especially with the addition of [Justice] Amy Coney Barrett, and we think it’s a more solid constitutionally based court.”

John Bursch, Alliance Defending Freedom senior counsel, told the Register in late May that “the Supreme Court’s own cases have been unclear about the states’ ability to protect life and the mother’s well-being before viability even in the late stages of a pregnancy.” 

Bursch noted that “the Supreme Court has said that states cannot protect life before viability, but in other cases the court has said that states have an interest in protecting life and women’s health and preventing the coarsening of society that results from abortion beginning from the moment of conception.”

 

The Viability Standard

In its petition, the state of Mississippi (via Thomas Dobbs, the state’s health officer) pointed out that their reasons for the prohibition on abortion after 15 weeks included “during the time the Act covers, the human fetus is likely capable of conscious pain perception in a manner that becomes increasingly complex over time” and that the law “prohibits abortions six weeks after a fetus’ basic physiological functions are all present, five weeks after the child’s vital organs begin to function, and three weeks after the child can open and close his or her fingers, make sucking motions, and sense stimuli outside the womb.” 

The petition also highlighted the conflict between “this Court’s suggestion that states cannot prohibit pre-viability abortions” in Roe v. Wade “and the Court’s repeated admonition that states have legitimate interests ‘from the outset of the pregnancy in protecting [1] the health of the mother and [2] the life of the fetus that may become a child’” in its 2007 Gonzales v. Carhart and 1992 Planned Parenthood v. Casey decisions. 

The Roe v. Wade decision defined viable as “potentially able to live outside the mother’s womb, albeit with artificial aid,” adding that “viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” 

However, the Supreme Court later acknowledged in its 1979 Colautti v. Franklin decision that “different physicians equate viability with different probabilities of survival, and some physicians refuse to equate viability with any numerical probability at all.”

“As medical technology advances, the viability line is continually changing,” Bursch said. “It’s rather silly, particularly when you’re talking about a supposed constitutional right — abortion — that doesn’t exist anywhere in the text of the Constitution, that the court has made up this viability line that changes over time. ... You could imagine the day sometime in the future that medical science will create an artificial womb, and from conception you would be able to grow a baby to full term and they would be able to survive just fine; and if that’s the case, then states would be able to protect life and women’s health beginning from conception.”

Glenn also criticized the viability standard, saying, “at AUL, we have been making the case that one of the reasons why Roe and Casey are unsettled and the court should review them is because viability is not a good standard. When Roe was decided in 1973, viability was generally understood to be around 28 weeks; by Casey in 1992, it was 24 weeks, and now babies are routinely surviving at 21 and 22 weeks — so basically each decade we get one week closer to conception as far as when babies can survive outside the womb.” 

She added that, “at 15 weeks, the current abortion procedure used is horrific, the baby feels pain, the risks to the mother are increased, and there are entire classes of children who have disabilities who are being aborted because of their disabilities. And all of these things are compelling interests for lawmakers and for the people who vote them in to office.” 

“With the standard the way it is,” she said, “there’s nothing they can do about that, and so that’s why they’re passing these laws, they’re going to court — judges are calling on the Supreme Court to take up this issue to give the state the ability to answer these questions and solve these problems, and that’s what we hope the court will do in this case.”

 

Public and Global Opinion

Both Glenn and Bursch referenced how Mississippi’s law was actually more in line with global abortion laws than current U.S. abortion law. The U.S. is one of just seven countries in the world that permits abortion past 20 weeks of pregnancy. The others are Canada, China, Netherlands, North Korea, Singapore and Vietnam. The Washington Post fact-checked this claim in 2017 and concluded that “this statistic seemed dubious at first, because it seemed extreme for just seven countries out of 198 to allow elective abortions after 20 weeks of pregnancy. But upon further digging, the data back up the claim.”

The Mississippi law also aligns with polling from the majority of Americans on the issue. The New York Times recently acknowledged, “less than 30% of Americans say that abortion should ‘generally be legal’ in the second trimester, according to Gallup. Many people also oppose abortion in specific circumstances — because a fetus has Down syndrome, for example — even during the first trimester.”

“There’s a democratic principle that’s at stake here, too,” Bursch said of the case. “Different states can enact laws that reflect the will of what their population wants to do, and, in Mississippi, the overwhelming number of people want to protect life at 15 weeks and later in pregnancy, and they should have the right to do that under the Constitution; and so when we make up constitutional rights and we rely on these fictional, evolving standards like viability, not only does it prevent states from protecting life and protecting women, but it also upsets the democratic process itself; it doesn’t allow the people to speak with the voice that they want.”

 

Possible Outcomes 

While many in the media have raised concerns that this case could mean the end of Roe v. Wade, Bursch did not see that as a likely outcome. 

“I don’t think this is going to be a case that will likely overrule Roe v. Wade,” he said, “but I do think that it would significantly protect the state’s ability to promote life and women’s health and the integrity of the medical profession and society. ... The newest justices are committed to a judicial philosophy called textualism or originalism, which means you look at the plain meaning of words in our Constitution at the time that they were adopted and then ask yourself, ‘How would the reasonable person with a command of English have understood it?’ And when the 14th Amendment was enacted, I can guarantee you that there wasn’t anybody in the United States who thought that it was protecting a right to an abortion.”

Talalas said that while it’s not clear if the court will revisit Roe or Casey, “we are very hopeful that they will establish that states can ban abortion before viability. But we are not sure how they will do it — with new criteria, with a new standard?” 

Glenn said that if the court does conclude pre-viability prohibitions can be constitutional, then the question becomes: “What is the test they’re going to apply? Will they stick with the Planned Parenthood v. Casey test and say the government’s got to have a really good reason here, and it cannot cause an undue burden on whatever percentage of women in the state [are] seeking abortion? Are they going to apply some other test? There are a number of outcomes, but we’re really hopeful that at the core of the decision will be an answer that, yes, there are some laws that pierce through that veil of pre-viability that has been used for the past over 25 years to really shut down a lot of these conversations.”

She said that “the only justice who has written extensively on this issue and has said the court must revisit these cases is Justice Clarence Thomas,” but “we have some inclination where these justices are based on the dissents that they wrote on June Medical last year, in which Justices Alito, Thomas, Gorsuch and Kavanaugh all wrote on their own in that case.” She called it “a very good sign that we seem to have several justices who are interested in federalism, who think that the states should have authority of the areas of the law that it’s appropriate for the states to have.”

Glenn said that “the worst-case scenario would be that they are presented with the question ‘Are any of these pre-viability laws constitutional?’ and they say ‘No,’” but, she added that “just does not seem the way that they’ve been going.” 

McClusky said a “likely scenario is a 5-4 decision; if [Chief Justice] Roberts doesn’t join the majority, then it’s left up to the most senior justice, who would be Justice Thomas; and Justice Thomas could either write the opinion or assign the opinion. And best-case scenario, anything written by Justice Barrett or Justice Thomas will be one for the history books. I think both of them articulate the issue very well.”