Roe v. Wade Made Viability the Key to Abortion Law

The Wall Street Journal

December 2, 2021

Joshua Prager

On Wednesday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case centering on a Mississippi law that bans abortion after 15 weeks except “in medical emergencies or for severe fetal abnormality.” The case raises a crucial question: Can states ban abortion before the point, at roughly 23 weeks, when the fetus is “viable”—that is, able to survive outside the pregnant woman’s body? If the court answers yes, it could overturn Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion until viability.

The Court first heard oral arguments in Roe 50 years ago, in December 1971. Brought by an anonymous plaintiff, the lawsuit contended that the Texas laws forbidding her from having an abortion were unconstitutional. A majority of the justices were inclined to agree. But Harry Blackmun, the justice assigned to write the majority opinion, was unsure where in the Constitution to ground the legal right to abortion and how late in the course of a pregnancy to grant it.

The case was delayed by the retirement of two justices, and in September 1972, a ruling by a federal district judge offered the high court a way forward. A group of women in Connecticut had filed suit against a state law banning abortion from conception. Judge Jon O. Newman ruled in the case, Abele v. Markle, that the state could ban abortion only from the point of viability, when, soon after the midpoint between conception and birth, “a fetus is capable, with proper medical attention, of surviving outside the uterus,” he wrote.

The notion of viability as a legal threshold was not new. In a 1900 case about prenatal injury, an Illinois judge wrote in dissent that the unborn ought to be considered legal entities from the “age of viability when the destruction of the life of the mother does not necessarily end its existence also.” And in a 1946 case filed on behalf of an infant injured at birth, a federal district court in Washington, D.C., ruled that “a viable child—one capable of living outside the womb” was entitled to damages. These and other cases were discussed in an article titled “Law and the Unborn Child” published in the Notre Dame Law Review in 1971.

Still, Judge Newman was the first to attach constitutional significance to viability, and several of the justices on the Supreme Court took note. After Justice Lewis Powell quoted Newman’s opinion in a letter to Justice Blackmun, the latter responded, in December 1972, that he “could go along with viability if it could command a court.”

One month later, by a 7-2 vote, Roe made abortion legal until viability. “This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb,” Justice Blackmun wrote in his decision. Roe became increasingly politicized as the years passed, but viability, its core principle, has remained in effect.

That is now all but certain to change. Oral arguments in Dobbs indicated that the court’s six conservative justices were looking beyond viability to the question of whether to draw a new legal line at 15 weeks, as the Mississippi law has it, or to overturn Roe outright. Many opposed to Roe have long argued that the Supreme Court ought never to have ruled on abortion in the first place. As an editorial in The Wall Street Journal put it days after the 1973 ruling: “Our reservations have to do with whether the court stepped too far into the legislative arena.” (Otherwise, the paper noted, it considered Roe “a reasonable balance on an exceedingly difficult question.”)

Were the court to overturn Roe, all 50 states would be left to draw the line between legal and illegal abortion for themselves. Already, 12 states have passed laws that would ban abortion from the point of conception in the event that Roe is overturned, while two states and the District of Columbia have legally guaranteed the right to abortion until birth.

Philosophical arguments can be summoned to support both extremes. “Potential theory” states that since a fertilized egg, or zygote, has the potential to develop into a person, it should have the rights of a person, and abortion should be forbidden from conception. At the other end of the spectrum, the American philosopher Mary Anne Warren argued that a fetus is not actually a person until birth, so abortion ought to be permissible until then. 

Science is hardly better at yielding consensus on the matter. The answer to the question of when a fetus is able to feel pain or think depends on whom you ask. The Dobbs petition to the Supreme Court asserts that “by 15 weeks, scientific literature shows that a baby in utero does not just detect pain but is capable of suffering,” but the American Congress of Obstetricians and Gynecologists has stated that until 24 weeks, the fetus “does not even have the physiological capacity to perceive pain.”

The exact point when a fetus is able to survive outside the womb is no more fixed. In 1983, a decade after Roe put viability at 24 to 28 weeks, Justice Sandra Day O’Connor wrote that “the Roe framework is clearly on a collision course with itself,” predicting that as science advanced, the point of viability would move ever closer toward conception. But that has not quite happened. The Journal of the American Medical Association reported in 2015 that just 11% of babies born before 24 weeks survived “without major morbidity.”

Technology may not enable fetuses to survive ever earlier births, but it has enabled doctors to provide abortions ever later in pregnancy. When Roe was filed, hardly any doctors knew how to perform abortions beyond 20 weeks. Today, a procedure called dilation and evacuation has made abortion until viability routine.

The plaintiff in Roe, Dallas waitress Norma McCorvey, was likely 19 or 20 weeks pregnant when she met her lawyers. She wanted an abortion and hoped her lawyers might give her the name of a doctor. Instead they gave her a pseudonym. And though Jane Roe won the right to have an abortion, her victory came too late for McCorvey, who delivered her child and relinquished it to adoption.

Days after the Court’s decision in January 1973, McCorvey confided that she was ambivalent about the ruling—happy that it made abortion legal, uncomfortable that it did so until viability. “I wouldn’t want to wait over three months for any abortion,” she told the Baptist Press, “because I might be ending a human life after that time.”