Viability — And Maybe ‘Roe v. Wade’ — Goes on Trial

In the context of the national controversy triggered by Texas’ new pro-life heartbeat bill, legal experts advise that it’s another case involving an earlier Mississippi law that might permanently upend abortion’s constitutional framework.

The U.S. Supreme Court is seen on September 02, 2021 in Washington, DC.
The U.S. Supreme Court is seen on September 02, 2021 in Washington, DC. (photo: Kevin Dietsch / AFP/Getty)

WASHINGTON — Has the U.S. Supreme Court’s “viability” standard regulating the limits states can place on abortion become legally unviable?

That’s the core legal question that’s now in play with the new Texas heartbeat bill, which prohibits abortion as soon as a fetal heartbeat is detectable. On Sept. 1, the Supreme Court declined to block the law before it came into effect on technical grounds, in a move that triggered a national torrent of invective from abortion rights supporters against the court’s conservative majority. The Texas law’s enactment has also provoked President Joe Biden, U.S. House Speaker Nancy Pelosi and other Democratic Party leaders to double down on their previous pledges to protect and enhance abortion access by every means at their disposal. 

But it’s another high-profile law passed in 2018 by Mississippi, which prohibits abortions after 15 weeks, that actually might prove to be the decisive blow against retention of the viability standard. The Supreme Court, in taking up the question of whether “all pre-viability prohibitions on elective abortions are unconstitutional” in Dobbs v. Jackson Women’s Health Organization, will revisit the standard, which was set forth in the 1973 Roe v. Wade decision legalizing abortion and reaffirmed in the 1992 Planned Parenthood v. Casey decision. 

And some legal experts believe the Dobbs case might even induce the court to dismantle the entire framework of abortion's legality, established in Roe and Casey.

According to Gerard Bradley, a professor of law at Notre Dame Law School, “it is more likely than not that at least five justices … will simply overrule Roe and Casey.” 


 ‘Shifting’ Standard and State Interests

Whether or not Roe and Casey are struck down completely, dropping the viability standard is a move that some legal experts say would make sense for the Supreme Court to make, given the way the standard has shifted over time, and given the additional interests that states have in protecting unborn life.

Roe v. Wade defined viable as “potentially able to live outside the mother’s womb, albeit with artificial aid,” adding, “viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” In Casey, the Supreme Court wrote that the government “may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” and affirmed from Roe that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Bradley told the Register via email that various justices have “in opinions across the decades acknowledged at least these two problems with the ‘viability’ standard: that it ties the law concerning a constitutional matter to shifting developments in medical technology, and that it demarcates a line that is really arbitrary with regard to the relevant ‘state interest’ in the life of the fetus in the womb.”

In a recent commentary for the Register, Bradley quoted Justice Sandra Day O’Connor’s arguments in the 1983 City of Akron v. Akron Center for Reproductive Health case where she wrote, “As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.” 

O’Connor also argued that viability has no relation to state interest which is in protecting “potential life” writing that “at any stage in pregnancy, there is the potential for human life” and the “choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward.”

Katie Glenn, government affairs counsel at Americans United for Life, told the Register that “the biggest issue with viability as a standard is that it’s undefined and changing.” She highlighted how the viability standard went from being understood to be at 28 to 24 weeks in the years following Roe and “now it’s closer to 22 weeks.” 

In Casey, she said the justices wrote that “advances in neonatal care have advanced viability to a point somewhat earlier” while still holding that “the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” 

Glenn said that another issue with the viability standard is that since the law “just says viability, and that's interpreted by the physician doing the abortion, you’re leaving the decision-making on the issue to the person who is ideologically and financially incentivized to determine that the baby is not viable, so they can go through with the abortion.” 

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


Next Steps for the Court  

Addressing what the court’s next steps might be if they do away with the viability standard, Bradley said “the most obvious alternative if the Court abandons ‘viability’ — which is not to say the most likely-to-be-adopted alternative — would be to open up the entirety of pregnancy to some kind of balancing test, where at least some abortions could be prohibited before ‘viability’ and indeed throughout pregnancy. Examples include abortions sought for eugenic reasons.  

“If the ‘viability’ rule of Casey were eliminated, then state laws banning altogether abortions sought due to a Down syndrome diagnosis, or even for racial or sex reasons, would very likely be upheld.  So, too, probably would a ban on abortions after fetal pain, on the view that abortions then are inhumane for a reason above and beyond the wrongness of abortion just by itself.”  

Bradley said another alternative in Dobbs would be “for the Court — and this I think could occur only if the Chief Justice [John Roberts] and Justice Kavanaugh join with the three pro-abortion justices to form a majority — to say that it is abandoning ‘viability’ and that the Mississippi law is itself constitutionally valid. Period.  The attraction of this idea for Roberts and Kavanaugh would be that it upholds the law and gives pro-lifers a victory. The appeal of it to the pro-abortion justices is that, although they acquiesce in upholding the law, the ruling does the least possible damage to the pro-abortion cause more generally.” 

But Bradley believes the likeliest outcome is overruling both Roe and Casey, an opinion shared by Robert George, the McCormick Professor of Jurisprudence at Princeton University 

“Let me offer a prediction, free of any face-saving hedge: Next year, the Supreme Court will hold that there is no constitutional right to elective abortions,” the Catholic legal scholar recently  wrote in First Things.

In order “to uphold the Mississippi law, the Court must reverse Casey,” George pointed out. “And to avoid eliminating any remaining right to abortion, it would need to replace Casey’s doctrine with another. It would need to allow prohibitions to start sometime after conception but before fifteen weeks. Yet the drawing of any such line would find no support in any legal text, history, or precedent, leaving nothing for the Justices to cite in support. An arbitrary line would look — and be — legislative, and hence political. A deliberately vague one, while looking less arbitrary, would invite endless re-litigation of its exact implications.”

Abortion proponents are alarmed over the prospect of Roe being overturned by Dobbs. A recent brief, filed by Mississippi abortion providers and the Center for Reproductive Rights, said that “accepting Mississippi’s request to abandon the viability line would turn back the clock for generations who have never known what it means to be without the fundamental right to make the decision whether to continue a pregnancy,” and “any answer to the question presented other than a categorical ‘yes’ would shatter the understanding women have held close for decades about their bodies, their futures, and their equal right to liberty.”

Mississippi Attorney General Lynn Fitch commented Monday in reply that “nothing in constitutional text, structure, history, or tradition supports a constitutional right to abortion, nor is there a sound basis for the current viability guidepost that determines when states can enact limitations on abortion,” The Washington Post reported. "Today’s brief offers no solid arguments in defense of Roe, and the Court should overturn this flawed and hopelessly unworkable precedent. It is time to return policymaking to the people where they can address abortion policy in a way that empowers women and promotes life.”


Different Laws in the States

Glenn also dismissed the “idea that abortion on demand is sacrosanct, that people order their lives around it,” saying that the reality would be if Roe were overturned that “there would be states like Texas and Mississippi, where you’d have basically no abortions. There’ll be states like New York, and California and the non-state District of Columbia that would be abortion destinations like they were before Roe, like they still are now, and there’ll be states like Florida in the middle. That’s part of an ordered, state-based democracy.” 

In the states, Glenn said, there are laws prohibiting abortion after 20 weeks that are not in line with the viability standard but remain on the books because the “pro-abortion side didn’t want to bring a challenge to viability.” She said these states know that “20 weeks is ahead of viability” but given studies showing that unborn babies feel pain at that point, they see “fetal pain as itself a compelling reason to prevent abortion.” 

Pro-abortion groups “haven’t wanted to touch 20 weeks, because they don’t want to potentially open the door to the court removing the Casey standard,” she said, “they’d rather just let those be in effect because 20 weeks is closer to 22 or 24 then 18 or 15.” 

In the past few years with medical advances, there have been babies who survived birth as early as 21 weeks.

The Charlotte Lozier Institute, the research arm of the pro-life Susan B. Anthony List, recently noted that “since January 2010, 23 states have enacted statutes prohibiting abortion at 20 weeks of pregnancy” and “of the 23 20-week laws enacted since 2010, only six have faced challenge in court, four have been enjoined, with one pending request for injunction in Montana, and 18 currently in effect.”

“It’s a system where you’ve got the laws that are clearly in defiance of the Casey standard, but nobody has challenged them and so they’re allowed to go into effect and the laws that have been strategically challenged,” Glenn said, “it’s clearly evidence that the current system isn’t working because your laws are subject to who wants to challenge them.” 


‘Decades of Confusion and Upheaval’

Regarding the recent Texas law barring abortion after the detection of a fetal heartbeat, which occurs typically at six weeks, Glenn said that Texas was motivated to “think creatively” in having the law enforced by lawsuits from private citizens, thereby sidestepping the typical injunctions blocking such laws from taking effect because they appear to conflict with current legal standards regarding abortion restrictions. 

Texas State Sen. Bryan Hughes, R-Mineola, the author of the Texas heartbeat law, recently wrote in The Wall Street Journal that “the Heartbeat Act was necessary because Roe v. Wade attempted to take the question of abortion out of the hands of American democracy” and “like it or not, states will keep crafting unconventional means of regulating abortion until the Supreme Court puts the question back where it belongs.”

O. Carter Snead, law professor at Notre Dame Law School, wrote in The Washington Post Sept. 6 that the Texas law was a “predictable consequence of decades of confusion and upheaval wrought by the Supreme Court’s constitutionally unwarranted decision to make itself the sole arbiter of abortion law in the United States, first in Roe and again in Planned Parenthood v. Casey.” 

Added Snead, “And though it may seem counterintuitive, the only way to return to anything resembling normalcy is for the court to overrule Roe and Casey and allow the American people to govern themselves on this perennially vexed issue through the deliberative processes of the political branches.”