Roe's Ragged Remnant: Viability
Osler, Mark, Stanford Law & Policy Review
TABLE OF CONTENTS INTRODUCTION I. THE SUPREME COURT'S TIME MARKERS A. The Lines Drawn by Roe B. Roe's Five Potential Gestational Time Markers 1. Conception 2. The End of the First Trimester 3. Quickening 4. Viability 5. Live Birth C. The Choice of Viability as a Central Time Marker in Roe and Casey 1. In Roe 2. In Casey II. STATE LAW THRESHOLDS AND RESTRICTIONS A. Regulatory Rules B. Time Markers III. A DEFENSE OF VIABILITY A. The Failure of the Court to Explain Why Viability is a Reasonable Threshold for the Attachment of Rights B. What the Court Should Say in Defense of Viability 1. Regarding the Mother 2. Regarding the Baby 3. Regarding Society's Choice C. The Cost of Roe's Sloppy Use of Trimesters D. The Court's Fatal Inconsistency 1. Roe's Textual Argument 2. Perceived Inconsistencies in Texas Law 3. Prevailing Abortion Practices in 1868 IV. THE LIMITED REMEDY OF CONSISTENCY
Camouflaged within the scarred earth between the pro-life and pro-choice trenches is an awful truth: that forty years after Roe v. Wade used viability as the key marker in understanding rights relating to pregnancy, abortion, and new life, (1) it is still legal in fifteen states and the District of Columbia to abort an infant capable of being born alive. This means that even when a woman can be free of a pregnancy without an abortion--by giving birth--this nation allows a procedure that ends a viable life. This is part of Roe's legacy because the confused and tragic mistake of picking one point in time (viability) to determine the beginning of possible state action to bar abortion and a different point in time to determine the baby's right to life (birth) was created on the pages of that opinion.
The appellant in Roe v. Wade, a pregnant Texas woman, wanted to win the right to have an abortion at any time up to the birth of her child, free of government restriction. (2) The appellee, the state of Texas, wanted the complete opposite: to maintain its general ban on abortions, which began with conception. (3) It was a dispute, as much as anything, about time markers for the beginning of life and personhood, with the appellant choosing birth and the appellee electing conception.
In resolving the case, the Supreme Court chose neither birth nor conception, and instead allowed states to bar abortion only after viability (4)--the point where the infant can survive outside the womb, describing this cut-off point only as having "both logical and biological justifications." (5) Muddying the waters, the Court also inserted what has over time become an increasingly apparent untruth-that viability can be equated with the end of the second trimester of pregnancy, (6) a mistake which has lingered within state statutes long after the Court itself disposed of that equation. Things then got even messier: Having found that a state's interest in a fetus's life begins at viability, the Court also held that the Fourteenth Amendment's equal protection guarantees did not protect the life of even a viable fetus until birth occurred. (7)
At its core, Roe thereby created two competing time markers for the same threshold--the development of a fetus to a point where it warrants state protection. In creating a privacy right for the mother, the time marker of viability was established, because beyond that point the state had a compelling interest in the baby. However, the same majority opinion held that the baby had no right to life until he was born. This failure to use viability consistently is significant, thoughtless, tragic, and continuing.
The Roe decision did a lousy job of explaining the significance of viability as a threshold, but that does not mean that viability cannot be defended as a significant development during gestation. Crucially, viability is significant because at that point the mother can terminate her pregnancy without an abortion--because the fetus is viable, she can give birth to a living child. …