Culture Wars/Current Controversies

Why viability is the best possible abortion compromise

By Damon Linker, The Week

America’s abortion precedents are a mess. They’re also as good as we’ll get.

Even in our politically polarized time, abortion stands out as an issue uniquely defined by extremes.

On one side, anti-abortion activists want the Supreme Court to overturn Roe v. Wade (1973) and Casey v. Planned Parenthood (1992), the cases that established and reaffirmed women’s constitutional right to terminate a pregnancy. This would return to state legislatures the question of whether and when an abortion is permitted, and many of them would promptly move to outlaw the procedure. On the other side, many pro-choice activists not only want to see Roe and Casey upheld but would also prefer reproductive rights to be codified in federal law, with the right to an abortion extended further into pregnancy than those landmark decisions allow.

This polarization suggests the status quo affirmed by Casey is itself a compromise position, since it treats abortion as a right, but not an absolute one. A woman’s right to an abortion is balanced against the state’s interest in protecting the rights of the baby, which come into play at “viability” — the point in pregnancy when the fetus can survive outside the womb (currently 22 to 23 weeks). Prior to that point, abortion must be available. After it, states are free to restrict it.

This arrangement could well change between now and the end of June 2022, when the Supreme Court will decide Dobbs v. Jackson Women’s Health Organization, a case concerning a Mississippi law that restricts abortion at 15 weeks, seven to eight weeks prior to viability. During oral arguments last week, Chief Justice John Roberts sounded eager to uphold Mississippi’s restriction without overturning Roe and Casey, which the other five conservative justices seemed willing and perhaps enthusiastic to do. Isn’t viability an arbitrary line? Roberts asked. Why not 15 weeks instead? 


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