The laws on fetal viability and the fate of abortion in the United States

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The concept of “fetal viability” is at the heart of the US Supreme Court case which could undermine or even eliminate the constitutional right to abortion. According to the court’s record, states cannot impose significant restrictions on access to abortion before the point of fetal viability. Defending its attempt to ban abortion starting at 15 weeks of pregnancy, Mississippi is asking the court to discard the fetal survival line and give states ample power to limit early-stage abortion. About 7% of abortions in the United States – or about 36,000 per year, using the data for 2019 – occur in the 15th week or later, meaning they could become outlawed in many states. According to a leaked majority opinion draft, published by Politico, the court is ready to overturn the precedent and side with Mississippi.

1. What is fetal viability?

In short, it is the point at which a fetus is able to live outside the womb with medical intervention. Exactly when it occurs requires a case-by-case determination. The most premature baby known to have survived was born (in 2020) at 21 weeks, 2 days in 2020, but doctors say fetal viability generally occurs a little later. In the case of Planned Parenthood v. Casey of 1992, the Supreme Court said profitability tended to be around 23-24 weeks, but could move to an earlier date as medical technology improved.

2. Why is vitality important in abortion cases?

The Supreme Court itself has made fetal viability a key issue. In its decision 5-4 in the Casey case, the court reaffirmed the fundamental right to abortion established in 1973 in the Roe v. Wade, but he changed the test to evaluate the constitutionality of state regulation. Up to the point of survival, the majority of the five judges ruled, the state cannot impose an “undue burden” on the right to terminate a pregnancy. In Casey’s two decades, the court has allowed states to impose requirements such as waiting periods and parental consent rules for minors, but never a pre-livability ban on abortion, as Mississippi is trying to do.

3. What does Mississippi want?

In 2018, the state legislature voted to ban abortions after the 15-week threshold, except in cases of severe fetal abnormalities or serious risks to the mother’s health. The bill was challenged by the state’s only abortion facility, the Jackson Women’s Health Organization, and found unconstitutional by a federal district judge and federal appeals court. The state appealed to the Supreme Court, arguing that the feasibility “is not an appropriate standard for assessing the constitutionality” of abortion laws. Mississippi says that at a minimum, the court should abandon the viability standard and allow states to limit abortion in the early stages of pregnancy.

4. What would it mean to remove the feasibility test?

In Mississippi, the immediate effect would be minimal, since the Jackson Women’s Health Organization only predicts abortions up to the 16-week mark. More generally, however, the effect could be immense. During the December 1 discussions, the court showed little interest in replacing feasibility with a new legal test, and even advocates of abortion rights did not suggest an alternative. So a ruling in favor of Mississippi could pave the way for much earlier bans by Mississippi and other states with Republican-led governments. More than 20 states already have book laws, ready for the day Roe v. Wade will be nullified, which would ban some or all pre-livable abortions. Mississippi itself passed a separate and stricter ban on abortions after six weeks, which has so far been blocked in court, and is one of 12 states with activation laws that would automatically go into effect if Roe overturned and banned nearly all abortions. .

5. Will the feasibility standard survive?

Judging by the December 1 argument, all six Republican appointees of the court were ready to give up the line of survival. This included Chief Justice John Roberts, the only Conservative who has occasionally advocated access to abortion. Roberts said feasibility was a standard the United States shared with China and North Korea, prompting abortion rights advocate Julie Rikelman to argue that Canada and most European countries also allow abortion. abortion up to that point. The bigger question is whether the court will go further and completely overthrow Roe and Casey, something other conservatives have suggested was a possibility. The initial leaked draft was written by Judge Samuel Alito and released in February. It was argued by at least five of the nine judges, according to Politico, who noted, however, that things could change before the court delivers its ruling, expected by July.

More stories like this are available at bloomberg.com

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