{"id":250485,"date":"2021-08-13T10:42:25","date_gmt":"2021-08-13T15:42:25","guid":{"rendered":"https:\/\/www.liveaction.org\/news\/?p=250485"},"modified":"2021-09-21T16:48:41","modified_gmt":"2021-09-21T21:48:41","slug":"three-reasons-viability-rule-abortion-unsound","status":"publish","type":"post","link":"https:\/\/archive.liveaction.org\/news\/three-reasons-viability-rule-abortion-unsound\/","title":{"rendered":"Three reasons why the ‘viability’ rule in abortion law is unsound"},"content":{"rendered":"
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The alleged “viability rule” put in place by the United States Supreme Court is an arbitrary line which dictates when a state can restrict or prohibit abortion. But a new case brought by Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, is being heard this fall before the Court. Dobbs v. Jackson Women’s Health Organization<\/em> centers around a Mississippi law which prohibits so-called previable abortions committed after 15 weeks and could challenge this alleged rule.<\/p>\n

In her recently submitted brief<\/a>\u00a0in the case of Dobbs, Mississippi Attorney General Lynn Fitch described the so-called “viability rule” as a “baseless” premise. She\u00a0pointed out that many decades have passed since the Court decided the cases of\u00a0Roe v. Wade<\/em> (nearly 50 years) and Planned Parenthood v. Casey<\/em> (nearly 30 years), which both made far-reaching assumptions about viability.<\/p>\n

“Like a right to abortion itself, a viability rule has no basis in the Constitution,” Fitch wrote.<\/p>\n

Fitch is not alone in her position; multiple amicus briefs filed on the State’s behalf are also highly critical of this outdated and harmful “viability” standard, for three reasons<\/p>\n

1. No basis in the Constitution<\/strong><\/p>\n

“There is no ‘point’ in pregnancy at which viability ‘occurs,'” wrote Life Legal Defense Foundation (LLDF) in a brief<\/a>\u00a0submitted in the case.\u00a0“Viability is a prediction, not a point,”\u00a0yet, “The Court [in Roe] defined viable as \u201cpotentially able to live outside the mother’s womb, albeit with artificial aid.\u201d<\/p>\n

AG Fitch’s argument is that Roe and Casey “do not provide persuasive support for a viability rule.” Roe<\/em>, she said, “concluded that the State’s interest in unborn life becomes ‘compelling’ at viability ‘because the fetus\u00a0then presumably has the capability of meaningful life outside the womb.'” She added that Casey<\/em> defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.\u201d<\/p>\n

“Each explanation boils down to a circular assertion: when an unborn child can live outside the womb then the State\u2019s interest is compelling because the unborn child can live outside the womb,” Fitch wrote. “That explanation ‘mistake[s] a definition for a syllogism’ and is linked to nothing in the Constitution.”<\/p>\n

The Catholic Medical Association (CMA) also filed an amicus brief<\/a>, stating, “The court\u2019s selection of viability as the time in pregnancy to assign value to the unborn child was an arbitrary policy choice.”\u00a0CMA\u00a0et al<\/em> added that “although viability was ultimately settled upon by the Court, Justice Blackmun described both the ‘end of the first trimester’ and ‘viability’ as being ‘equally arbitrary.'”<\/p>\n

“The internal papers of the Court also suggest that the choice of viability was based primarily on pragmatic policy concerns and personal preferences with respect to allowing more time to obtain an abortion. It was not based on any evidence presented to the Court or on any constitutional or statutory text,” CMA et al\u00a0<\/em>added.<\/p>\n

CMA\u00a0et al <\/em>accused the Court of “acting in a quasi-legislative capacity \u2014 making judgments not about what any duly enacted law said, but rather, on what it deemed to be ‘practical’ solutions to social problems related to unwanted pregnancies.”<\/p>\n

According to CMA et al<\/em>, “the Court [did not] attempt to explain why the State\u2019s interest in protecting unborn human life just prior to viability should be nonexistent and then suddenly appear just after viability, if it is growing in substantiality throughout pregnancy.”<\/p>\n

LLDF also noted in its brief, “… [T]his Court has never attempted to elaborate on why a child\u2019s ability or inability to survive outside the womb in the case of a premature delivery has any bearing on the state\u2019s interest in protecting the child from being killed inside the womb.”<\/p>\n

2. ‘Viability rule’ inconsistent with other areas of law<\/strong><\/p>\n

According to the brief<\/a> filed by the Alabama Center for Law and Liberty (ACLL), “The viability rule does not comport with other areas of the law addressing the rights of unborn children.”\u00a0ACLL notes several areas of law that recognize and\/or protect the rights of the preborn child, such as criminal law, law of torts, property, guardianship, family, and healthcare law:<\/p>\n