Wednesday, May 26, 2021

In Defense of Viability

 by Sherry F. Colb

Earlier this month, the U.S. Supreme Court granted cert. in Dobbs v. Jackson Women's Health Organization, a case that will consider the constitutionality of a Mississippi law that bans most abortions after 15 weeks. By taking the case, notwithstanding the absence of any reason to think the law is valid under existing doctrine, the Court has signaled its willingness to reconsider the holdings in Roe, Casey, and their progeny guaranteeing a right to abortion up until viability. Today on Verdict, Michael Dorf explains how Dobbs poses a direct threat to the viability line in ways that other post-Roe SCOTUS cases did not. I want to suggest here that the viability line has positive attributes that the Supreme Court has failed to consider and will likely continue to fail to consider, even as it discards the viability framework and pretends that viability was never as central to the abortion right as it in fact was.

What is viability? It is the point at which a fetus could, if delivered today, survive outside of the womb. Roe v. Wade divided pregnancy into trimesters because Justice Blackmun, who wrote the decision, was very medically oriented from his time as general counsel to the Mayo Clinic, and trimesters played an important role in how doctors divided pregnancy. In Roe, viability, located around the border between the second and third trimesters, was the point at which the government's interest in potential life matured sufficiently to allow for a ban on the procedure, provided exceptions for when the life or health of the woman required an abortion. The first and second trimesters also held significance under Roe, but the Casey plurality treated the trimester framework with so little deference that it would have surprised no one if the three-Justice plurality had referred to the "stupid trimester framework" along with its actual references to the rigid trimester framework, etc. What remained of Roe in Casey was the viability line. Prior to viability, bans were impermissible (as were laws that created an "undue burden" on the exercise of the right to abortion). Post-viability, bans (with exceptions for a woman's life or health) were fine.

Viability, however, would appear to have little to recommend it as a border between prohibiting and permitting abortion. What changes when a fetus becomes viable outside the womb? What changes is more or less that the fetus's lungs have developed enough to take in oxygen without the placenta to absorb it from the mother's bloodstream and pass it along through the umbilical cord. Is the ability to breathe outside the womb a morally relevant characteristic? How could it be? The ability to breathe is essential for life, but it is not the sort of thing to which we attach moral status, any more than the ability to see or to walk or to speak are such abilities. Such capacities are morally neutral, at best. At worst, a fixation upon them as a prerequisite for rights appears to embrace a problematic ableism. Are people who cannot breathe without assistance somehow "less than" those who can?

In addition to its irrelevance (and possible perversity) as a criterion for a fetus's moral standing, viability also seems a bit illogical. Indeed, one might say that waiting until viability to protect the right to abortion is exactly backward. Up until viability, the fetus needs the mother's body in order to live, yet we give the mother the right to remove the fetus from her body during that period and thus the right to kill it. But then, at the moment when the fetus can survive without having to live inside its mother's body, it is then that, by permitting an abortion ban, we say that it is okay to require the mother to keep the fetus inside her body for another 15 weeks or so. She can take the fetus out when it needs to be in but once it can survive an exit, it must stay in. What kind of a rule is that? It is like providing that the warden of a prison, in case of a fire, must keep all prisoners locked in the burning building. But then, once the fire is extinguished, the warden must liberate the prisoners. 

For those keeping score, then, there is nothing about being "viable" (i.e., having working lungs) that makes a fetus morally entitled to better treatment than an otherwise identical but "nonviable" (lungs not quite working yet) fetus. Viability as an important fact about the fetus itself therefore fails the test of relevance. At the same time, if we looked to the greatest need rather than to the moral status of the viable fetus, we would want to protect the embryo and fetus until viability and protect women who wish to stop being pregnant after viability so long as they simply induce labor and give birth rather than terminating the life of the fetus. If abortion is about protecting a person's bodily integrity (rather than about simply avoiding unwanted infants), then there would be a right to stop being pregnant (by inducing labor) but no right to kill the fetus in the process (unless death is inevitable because the fetus isn't viable). Viability thus seems like a lot of nonsense for a rule that has stubbornly hung on while other components of abortion rights fell by the wayside (including, for example, an entitlement to avoid hearing false health information from one's provider).

So why did I call this post "in defense of viability"? One possibility is that I titled the post first and then managed to persuade myself that the likely downfall of viability when the Court decides the Mississippi case makes a lot of sense. Abortion opponents, rather than having to identify something special about fifteen weeks, can simply point out that the viability line that Mississippi is replacing with a fifteen-week line is the emperor that has no clothes. And if the line between twenty-three or twenty-four weeks and fifteen weeks is a distinction without a difference, then the Court has no reason to strike down the Mississippi law. It's like the joke about student performance in law school. A bear begins chasing two law students. One of the two starts sprinting away. The second one yells "what's the point? how are you gonna outrun a bear?" The answer: "I don't need to. I just have to outrun you." If viability is illogical, then fifteen weeks can outrun it easily.

Nonetheless, I actually do think viability has something going for it, though not anything that the Court has identified. The moment of viability is the point at which terminating a pregnancy--which a woman should always be in a position to do--and killing the fetus, no longer have to go together. Prior to viability, if a woman exercises her right to stop being in a state of pregnancy, to remove an unwanted human parasite from inside her body (a parasite because it extracts precious resources while depleting its host's store), its removal will necessarily end the life of the embryo or fetus. Being pre-viable means being unable to survive outside of a womb, connected to a placenta by an umbilical cord. 

If we think of abortion as self-defense, and self-defense as requiring no less restrictive alternative, it is true, prior to viability, that there is no way for the pregnant woman to defend herself against an unwanted pregnancy without also ending her embryo's or fetus's life. Once viability has arrived, however, it becomes possible to sever these two endings. The woman who wants to stop being pregnant can, after viability, fulfill her wish without killing the fetus. For that reason, it may be coherent to say that once viability arrives, a woman no longer has the right to kill her fetus, a right that she had for the whole pre-viability period only because defending herself and killing were inextricably linked. Though this account of Roe v. Wade is admittedly a bit different from the doctrinal shape of the existing (for now) right to abortion, it makes sense and offers a rationale for prohibiting abortion--in the sense of "feticide"--after viability. We might even say that the abortion right was never really a right to kill to begin with; it was a right of a person to stop housing another living being inside her body.

I recall a now-former Justice on the Supreme Court telling me that compelled pregnancy is not really that big a deal. After all, he said, it's just nine months and then the supposed enslavement is over. I found this view both depressing and most probably widely shared among people who oppose abortion at all stages of pregnancy (which I suspect is true of those currently defending a fifteen-week cutoff in Mississippi). Why depressing? Because for someone who doesn't want to be pregnant, having one's body occupied by a human parasite that keeps growing until its host's breathing becomes difficult, blood clots and other medical problems become increasingly likely, and the only deliverance lies in an excruciating process of labor and delivery or major surgery, is a big deal. Though men occasionally say to their laboring partners, "I wish I could go through this instead of you," I find it hard to imagine that if men were the ones being devoured from within against their will, they would be questioning why a person would make such a fuss over nine short months.

I am realistic about why the Justices decided to take the Mississippi abortion case and what that grant signals about the Court's future plans. It is unsurprising that Ed Whalen at the National Review said "I’m very glad to see that the Supreme Court has (at last!) granted review of the state of Mississippi’s certiorari petition in Dobbs v. Jackson Women’s Health Organization." One does not need tremendous skill to read the tea leaves here. With or without Chief Justice Roberts's vote (and likely with him writing for six Justices), the Court will uphold the fifteen-week ban and gently but firmly bid the viability line adieu. It will next take a case with a shorter limit, perhaps followed by a "eugenic" abortion ban and medical requirements of the sort struck down in Whole Women's Health and June Medical. It will uphold every statute until we are back at conception (with the possible exception of a law that overtly embraces male supremacy by requiring the father's consent). Maybe the retrenchment will "energize" the left--that is what some on this blog have predicted--but I could see it going in exactly the opposite direction. When your rulers, appointed by the mad King Caligula, trample your rights repeatedly, you may lose the will to fight. Not everyone does, of course, but becoming discouraged and demoralized is hardly an unusual phenomenon. 

Even if a large majority of Americans are pro-choice, many may care far less about this issue than pro-choice activists imagine. Here, accordingly, is some free advice to activists: make medical abortions as accessible as possible before the Court starts announcing a fetus's constitutional right to life under the Due Process Clause. Now is the time to stockpile RU486 and book open-reservation flights to Ireland and France. Anyone who thinks abortion will never be illegal in New York or California is confused about the "judicial restraint" that kept "conservatives" from openly advocating a substantive due process right to life for the fetus. Restraint in its many forms no longer resides in a majority of the U.S. Supreme Court.