Fetal viability, long a demarcation line from abortion, faces Supreme Court test

WASHINGTON – In 1973, in Roe vs. Wade , the Supreme Court drew a line. The constitution, he said, did not allow states to ban abortions...

WASHINGTON – In 1973, in Roe vs. Wade, the Supreme Court drew a line. The constitution, he said, did not allow states to ban abortions before the fetus could survive outside the womb.

When the court hears the largest abortion case in a generation on Wednesday, a central question will be whether the court’s conservative majority is ready to erase that line. The case concerns a Mississippi law that prohibits most abortions after 15 weeks, long before fetal viability.

The court could overturn Roe entirely, allowing states to ban abortions at any time. But at least some judges may want to find a way to uphold Mississippi law without overthrowing Roe in so many words, forcing them to drop the viability line and replace it with another standard that would allow a 15-week delay.

Mississippi lawyers, who have primarily argued that there is no constitutional justification for any line, have propose two saving arguments. They said the court could revise another existing standard, banning “excessive demand” on the right to abortion, to allow the 15-week limit by focusing on the fact that a substantial majority of abortions take place. by then. Or, the lawyers wrote, the court could simply uphold Mississippi law and leave the thorny issue of drawing a new line for another day.

Neither argument was serious, lawyers at Mississippi’s only abortion clinic responded. “The state offers no alternative to the sustainability line that could support a stable right to abortion,” they wrote.

Sustainability is supported by a principle in a way that other thresholds are not, said David S. Cohen, professor of law at Drexel University.

“This is a time when interests change, because there is a medical rationale for intervening in a way that would be different before viability,” he said. “If the court were to go back without setting Roe aside and say that 15 weeks is now the new limit, I don’t know on what basis there would be for that. “

At the same time, drawing a line on viability has long been the subject of criticism. “The sustainability framework has always been an embarrassment, in large part because sustainability depends on medical technology and access to it,” said Julia D. Mahoney, professor of law at the University of Virginia.

When Roe was decided viability was around 28 weeks. Nowadays, according to the hospital, fetuses can survive outside the womb after about 23 weeks.

“Sustainability has been the subject of criticism from some bioethicists, both pro-choice and pro-life, mostly on the theory that it does not follow our moral intuitions as life gains value. to focus exclusively on addiction, especially if the addiction follows technology development or even technology availability, ”said Marie Ziegler, professor of law and historian at Florida State University.

The Supreme Court considered other approaches in Roe itself.

Judge Harry A. Blackmun, who wrote the majority opinion, first chose another place to draw the line, around 13 weeks.

“I concluded that the end of the first trimester is critical,” he wrote to the other judges in 1972. “It’s arbitrary, but maybe any other point chosen, like acceleration or viability, is all. also arbitrary. ” (“Acceleration” is when a woman becomes aware of the movements of the fetus, often around 16 weeks.)

Judge Thurgood Marshall helped persuade his colleague to choose viability, towards the end of the second trimester. “Given the difficulties many women may have in believing they are pregnant and deciding to seek an abortion,” Justice Marshall wrote to Justice Blackmun, “I fear the earlier date may not serve the best interests of the day. of these women, which your opinion seeks to serve.

The line Roe finally drew has been called into question.

Sherry F. Colb, Cornell law professor and law clerk to Justice Blackmun, recently wrote about a law blog this viability “would seem to have little reason to recommend it as the border between the prohibition and the authorization of abortion”. In practice, she writes, viability is a function of the ability to breathe outside the womb.

“The ability to breathe is essential to life,” she wrote, “but it is not the kind of thing we place moral status on, nor is the ability to see, walk or see. talk about are only such abilities ”.

She also questioned the logic of viability as the norm for allowing a pregnant woman to request an abortion.

“She can take the fetus out when it needs to be inside, but once it can survive an sortie, it has to stay inside,” Professor Colb wrote. “What kind of a rule is this? “

Professor Mahoney said approaches from other countries offered another point of comparison. Nominal limits of approximately 12 weeks are commonplace in other developed countries, although the social context is generally quite different. There are often few barriers to obtaining an abortion abroad and public insurance is common.

In the United States, the Supreme Court has repeatedly reaffirmed sustainability as the constitutionally required line. In 1992, in Planned Parenthood v. Casey, which ruled that states cannot impose an “undue burden” on women seeking an abortion before fetal viability, the court said viability was part of Roe’s “essential detention”.

“A woman’s right to terminate her pregnancy prior to viability is the most central tenet of Roe v. Wade,” the dominant opinion stated in Casey.

“We have to justify the lines we draw,” said the opinion. “And there is no other line than sustainability that is more achievable.”

Last year, in delivering the fifth vote to repeal a restrictive abortion law in Louisiana, Chief Justice John G. Roberts Jr. underlined the point, citing the Casey decision.

Both sides in the Mississippi affair have taken almost absolutist positions. State attorneys have gone through all the pages of their main brief of the Supreme Court on a head-on attack on Roe and Casey, claiming they were “extremely wrong” and should be canceled, allowing states to ban abortions at any time.

The final pages of the brief offered two approaches that would allow the Supreme Court to uphold Mississippi law but avoid overturning Roe.

First, the state brief stated that “the court could consider the state’s interests in protecting unborn life, women’s health and the integrity of the medical profession to be, at a minimum, compelling at 15 weeks. of gestation ”and“ leave for another day the question of which standard applies in the absence of a rule of viability.

Second, according to the brief, the court could transform Casey’s “excessive demand” standard to allow outright bans on pre-viability abortions if they do not impose a substantial barrier on a significant number of women seeking pregnancy. have an abortion. Since most women have first trimester abortions, and Mississippi’s only abortion clinic performs abortions for up to 16 weeks, the brief says the law does not impose an excessive burden.

Lawyers for the clinic responded that upholding state law was impossible to reconcile with Roe and Casey.

“There are no half measures here,” said the clinic’s brief. “Each version of the state’s argument boils down to the same: a demand that the court undermine a half-century of precedent and urge states to ban abortion altogether. “

Professor Cohen cautioned, saying that mere obedience to Mississippi law does not amount to overturning Roe v. Wade.

“If people are still able to get 95 percent of the abortions that happen in this country at 15 weeks or before, that’s still very important,” he said. “It’s not Roe who’s knocked down. Roe being chipped? Yes. But Roe being canceled means that no abortion is legal in any state.

Some members of the Conservative Supreme Court majority might be tempted to seek a half-measure, which would undermine Roe and Casey without expressly overturning them.

Casey himself revised Roe in a way that proponents of abortion rights said would amount to canceling Roe. When the Casey case was debatedKathryn Kolbert, a lawyer for an abortion clinic group challenging a Pennsylvania law, told judges that dropping the demanding form of increased judicial review demanded by Roe and replacing it with “a less protective standard such as testing undue demand “would” be the same as canceling Roe. “

The court dropped that heightened review and replaced it with the now familiar excessive demand test, under which the court maintained restrictions on abortion. Still, few would say Casey canceled Roe.

Some jurists wonder if the court can take a similar step in the new case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392.

“One of the questions that many of us will be interested in is whether it is possible to sever Roe and Casey’s viability and have something – if the court can pull off the trick it did.” in Planned Parenthood v. Casey, when he eliminated what many considered at the time to be the heart of Roe v. Wade and yet preserved what he considered to be the essential fund, ”said Professor Ziegler.

Professor Mahoney said at least some of the judges might be inclined to give it a try.

“We draw lines all the time in constitutional judgments,” she said. “We have no choice. And we recognize that they are not entirely satisfactory.

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Newsrust - US Top News: Fetal viability, long a demarcation line from abortion, faces Supreme Court test
Fetal viability, long a demarcation line from abortion, faces Supreme Court test
Newsrust - US Top News
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