Gonzales, Casey, and the Viability Rule

Summary

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279 INTRODUCTION For more than a third of a century, United States courts have vigorously applied a seemingly arbitrary rule, one never justified in either legal or moral terms. Since Roe v. Wade, the Supreme Court has maintained that the right to abortion continues until fetal viability, the point at which the fetus is potentially able to live outside the mother's womb, albeit with artificial aid. [...] I sketch out the practical import of the viability rule, which prevents state regulation of late-term abortions that would be illegal in all but a handful of other countries.\n The possible distinction the majority perceived between intact D&E and standard D&E abortions offers little assistance in justifying the viability rule.

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Gonzales, Casey, and the Viability Rule

INTRODUCTION ............................................................................................................. 249

I. WHY EXPECT A RATIONALE FOR THE VIABILITY RULE? ........................................ 253

A. Casey's Test of Legitimacy .......................................................................... 254

B. The Moral Randomness of the Viability Standard. ...................................... 257

C. Viability in International Perspective ......................................................... 261

II. THE SUPREME COURT'S FAILURE TO JUSTIFY THE VIABILITY RULE ...................... 267

A. The Missing Syllogism of Roe v. Wade ....................................................... 268

B. The Ambiguous and Conclusory Syllogism o/Planned Parenthood v. Casey ........................................................................................................... 271

C. Justifying the Viability Rule After Gonzales v. Carhart ............................... 276

CONCLUSION ................................................................................................................ 279

INTRODUCTION

For more than a third of a century, United States courts have vigorously applied a seemingly arbitrary rule, one never justified in either legal or moral terms. Since Roe v. Wade, the Supreme Court has maintained that the right to abortion continues until fetal "viability," the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid."1 This Essay questions the constitutional justification for the viability rule, particularly in light of the Court's recent decision in Gonzales v. Carhart.2

The concept of viability first entered the Supreme Court's abortion jurisprudence as an element of Roe's now-abandoned "trimester framework," which evaluated abortion regulations based on the stage of pregnancy to which they applied.3 Roe concluded that the state interest in protecting fetal life becomes "compelling" - justifying substantial regulation or proscription of abortion - only at viability,4 a period then identified with the third trimester of pregnancy.5 This viability rule generated dissents in subsequent cases from Justices who considered the Court's line "arbitrary."6 Justice White, for example, maintained that "the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant."7

Nearly two decades after Roe, the controlling opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey discarded the "rigid" trimester framework and substituted a more accommodating "undue burden" standard.8 The plurality, however, retained the rule that a state may not prohibit abortion prior to fetal viability,9 though with the recognition that medical advances had pushed viability to an earlier point in pregnancy than at the time of...

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