Claire Colby, MJLST Staffer
After the Supreme Court heard arguments in Dobbs v. Jackson Women’s Health on December 1, legal commentatorsbegan to speculate the case could be a vehicle for overturning Roe v. Wade. The Mississippi statute at issue in Dobbs bans nearly all abortions after 15 weeks. In questioning Mississippi Solicitor General Scott Stewart, Justice Sonia Sotomayor asked about the “advancements in medicine” that have changed the lines of viability since the Court last considered a major challenge to Roe with Planned Parenthood v. Casey in 1992. “What has changed in science to show that the viability line is not a real line…?” she asked.
Roe v. Wade was a 1973 landmark decision in which the Supreme Court adopted a trimester framework for abortion. During the first trimester, the Court held that “the abortion decision and its effectuation must be left to the medical judgement of the pregnant woman’s attending physician.” The court held that states could adopt regulations “reasonably related to maternal health” for abortions after the first trimester, and held that in the third trimester, upon viability, states may “regulate, and even proscribe, abortion except where necessary, in appropriate medical judgement for the preservation of the life or health of the mother.” In 1992, the Court rejected this “rigid trimester” framework in Planned Parenthood v. Casey. In Casey, the Court turned to a viability framework and found that pre-viability, states may not prohibit abortion or impose “a substantial obstacle to the woman’s effective right to elect the procedure.” The Court adopted an “undue burden” standard to determine whether state regulations of pre-viability abortion are unconstitutional.
In Casey, the court defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” So when do medical professionals consider a fetus viable? The threshold has moved to earlier in the gestation period since the 1970s, but experts disagree on where to draw the line. According to a journal articlepublished in 2018 in Women’s Health Issues, in 1971, fetal age of approximately 28 weeks was “widely used as the criterion of viability.” The article said that until recently, 24 weeks of gestation was the “widely accepted cutoff for viability in the highest acuity neonatal intensive care units.” According to the article, babies born as early as 22 weeks of gestation had an “overall survival rate of 23%” with “the most aggressive medical management available.” The article rebuked the idea of tying abortion restrictions to viability at all: “Tying abortion provisions to the word viability today is as misguided as it was to tie it to a specific trimester in 1973,” the article stated. “There was no true definition of viability then, and as long as medicine strives to treat every patient uniquely, there will never be one.”
A 2017 practice alert published in the official journal of the American College of Obstetricians and Gynecologists defined “periviable” births —births occurring “near the limit of viability” —as births occurring between 20 and 26 weeks gestation.
According to a 2020 New York Times article, determinations on the gestational age at which a baby is likely to survive outside of the womb are “in a complex moment of transition.” Though technology has improved, “even top academic institutions disagree about the right approach to treating 22- and 23-week babies.” The article reported that the University of California, San Francisco “a top-tier, high resource hospital,” is “transparent about its policy of offering only comfort care for babies that are born up to the first day of the 23rd week, down to the hour.”
In June 2020, a baby born at the Children’s Hospital and Clinics of Minnesota set the world record for the world’s most premature baby to survive, the Washington Post reported. He was born at 21 weeks and two days gestation.
Several medical developments help to explain this earlier period of viability.
According to a 2020 Nature article, “the biggest difference to survival came in the early 1990s with surfactant treatment.” Surfactant is a “slippery substance” that prevents airways from collapsing upon exhalation. According to Kaiser, premature babies with underdeveloped lungs often lack the substance. “When premature lungs are treated with surfactant after birth, the infant’s blood oxygen levels usually improve within minutes.”
A 2018 study published by the Journal of the American Medical Association, administering prenatal steroids to mothers between 22 and 25 weeks gestation prior to delivery led to a “significantly higher” survival rate, but “survival without major morbidities remains low at 22 and 23 weeks.”
The Dobbs ruling is not expected until this summer, when the Court tends to release its major decisions. Even if the Court maintains the viability standard set forth in Casey, recent medical advances may warrant more consideration about where to draw this line.