Roe's ragged remnant: viability.

• Author: Osler, Mark
• Position: 40th Anniversary of Roe v. Wade Commemorative Articles

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 INTRODUCTION

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. This changes everything. Most importantly, if the balancing to be done prior to viability is described by pro-choice advocates as freedom from pregnancy versus potential life, at viability that tension between freedom and life changes, because the mother can be free of the pregnancy without an abortion, by giving birth to the child. Instead, the balancing after viability is between life and money, because a premature birth can be expensive, and there is that cost to account for. That shift--from "freedom v. life" to "money v. life"--marks viability as a threshold so significant that it demands to be used consistently, in regard to both the rights of the mother and the rights of the baby.

Roe did not even approach this analysis because it was a soggy, gray-area compromise, and it was this soggy, gray-area compromise that led to one of the most significant and continuing moral dilemmas in the modern era: The legal abortion of infants beyond the point of viability, a problem that has been exacerbated as medical science has moved viability steadily closer to conception. (8) A part of Roe's ragged remnant that most people would rather not think about is the bare fact that it remains legal in the United States to abort a baby capable of living outside the womb.

In the end, this Article argues that viability is a unique and important threshold for the attachment of rights, that there is both a moral and a legal duty for courts to re-examine these questions, and that states which allow abortion after viability bear a moral imperative to remove that ragged fringe and generally prohibit abortions after the point of viability.

From 1973 to the present, this issue has tended towards an all-or-nothing debate, where pro-choice advocates seek freedom from restrictions up to birth and pro-life supporters argue for a prohibition on abortion beginning with conception. Within this environment, too little attention is paid to those abortions performed after the crucial point of viability. It is not a moot or insignificant issue: ten states and the District of Columbia broadly allow abortion up to the time of birth, (9) and five more states allow abortion for any reason up to the end of the second trimester (which is about twenty-eight weeks into the period of gestation). (10) If the consensus relied on by the Supreme Court (in establishing the privacy right to an abortion) is that the compelling point of development during gestation is viability, and sixteen U.S. jurisdictions allow abortion beyond that point, there is a serious disjuncture between what we seem to believe and what we are doing.

Part I of this Article will examine the various time markers considered in Justice Blackmun's majority opinion in Roe, and his fairly extensive discussion not only of viability, but of conception, birth, quickening, and the end of the first trimester as possible marking points. It will then describe Justice O'Connor's plurality opinion in Casey, which dispensed with the trimester construct and increased the importance of viability by making it the only threshold relating to rights between conception and birth, yet failed to create consistency by using viability as the threshold for the infant's rights, as well.

Part II will review the currently effective state laws, which present a strikingly diverse set of standards regarding abortion. Some place virtually no limits on abortion, some allow abortions beyond the point of viability to the end of the second trimester, and others have limits on abortion that are pegged close to, or even before, what appears to be the point of viability under the standard of care now available.

Part III will turn to the heart of this issue and defend the threshold of viability as well-founded and reasonable as a marker of the beginning of life, and as the point at which rights should attach for both mother and child. Notably, this explanation of why viability is the appropriate marker is one that the Supreme Court itself has not yet undertaken in any significant way, despite choosing it from among the options described in Part I.

Finally, Part IV will urge specific outcomes, based on the messiness of state laws, the defensibility of viability as a meaningful threshold, and the important issues of public morality at stake. In short, the Supreme Court should extend the right to life under the Fourteenth Amendment so that it begins at the time of viability, which would unify the time markers and address universally both of the problems identified here. In addition to and hopefully in conjunction with the Supreme Court's clarification on this issue, the states should simply take this position through legislative change, making viability a thorough and meaningful threshold not only to the mother but also to the independent life within her.

1. THE SUPREME COURT'S TIME MARKERS

   1. The Lines Drawn by Roc

      The appellant (a pregnant Texas woman who wanted an abortion) and the appellee (Dallas District Attorney Henry Wade, charged with enforcing abortion laws) in Roe saw the realities of gestation very differently. Texas sought to uphold its strict law, which banned all abortions, at any time during pregnancy, with the sole exception being when an abortion is necessary to save the life of the mother. (11) In contrast, the appellant sought a ruling that all abortions, at any time during pregnancy, would be protected from state sanction by a constitutional right to privacy. (12) Neither got what they wanted, and the Court instead created an unsteady construct which chose two time markers within the period between these extremes: the end of the first trimester and the point of viability, when a child can live outside of the womb. (13)

      The majority opinion in Roe contained three distinct holdings, two of which were premised on the conclusion that there is a fundamental individual and constitutional privacy interest in abortion, while the third established that there was no Fourteenth Amendment right to life for unborn children. The first two...