1. What is fetal viability?
In short, it is the point at which a fetus is capable of living outside the womb with medical intervention. Exactly when this occurs requires a case-by-case determination. The most premature baby known to survive was born (in 2020) at 21 weeks, 2 days in 2020, but doctors say fetal viability usually occurs a little later. In Planned Parenthood v. Casey in 1992, the Supreme Court said that viability tended to be around 23 to 24 weeks, but could shift to an earlier date as medical technology improved.
2. Why does viability matter in abortion cases?
The Supreme Court itself made fetal viability a fundamental issue. In its 5-4 decision in Casey, the court reaffirmed the central right to abortion established in 1973 in Roe v. Wade but modified the test to assess the constitutionality of the state regulation. To the extent of feasibility, the five-judge majority ruled, the state cannot impose an “undue burden” on the right to terminate a pregnancy. In the two decades since Casey, the court has allowed states to impose requirements such as waiting periods and parental consent rules for minors, but never a pre-abortion ban, as Mississippi attempts to do.
3. What does Mississippi want?
In 2018, the state legislature voted to ban abortions after the 15-week mark, except in cases of serious fetal abnormality or significant risk to the mother’s health. The proposed law was challenged by the state’s only abortion facility, the Jackson Women’s Health Organization, and was found unconstitutional by a federal district judge and a federal appeals court. The state appealed to the Supreme Court, arguing that feasibility is “not an appropriate standard for assessing the constitutionality” of abortion laws. Mississippi says that, at a minimum, the court should drop the viability standard and allow states to restrict abortion in early pregnancy.
4. What would it mean to eliminate the feasibility test?
In Mississippi, the immediate effect would be minimal, since the Jackson Women’s Health Organization provides abortions only up to 16 weeks. However, more generally, the effect could be huge. During arguments on December 1, the court showed little interest in replacing viability with a new legal test, and even abortion-rights advocates did not suggest an alternative. So a ruling in Mississippi’s favor could clear the way for much earlier bans, by Mississippi and other states with Republican-led governments. More than 20 states already have laws on the books, ready for the day Roe v. Wade is overturned, which would ban some or all pre-viability abortions. Mississippi itself passed a separate, stricter ban on abortions after six weeks, which has so far been blocked in court, and is one of 12 states with trigger laws that would kick in automatically if Roe is struck down and ban nearly all the abortions.
5. Will the viability standard survive?
Judging by the Dec. 1 argument, the six court-appointed Republicans were ready to shed the feasibility line. That included Chief Justice John Roberts, the only conservative who has occasionally endorsed abortion access. Roberts said viability was a standard the United States shared with China and North Korea, prompting abortion rights advocate Julie Rikelman to counter that Canada and most European countries also allow abortion up to that point. The bigger question is whether the court will go further and strike down Roe and Casey entirely, something the other conservatives suggested was a possibility. The initial leaked draft was written by Judge Samuel Alito and circulated in February. It was supported by at least five of the nine justices, according to Politico, who noted, however, that things could change before the court delivers its ruling, which is expected in July.
More stories like this are available at bloomberg.com