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.


Joe said...

[tl;dr -- viability is a sound basic rule, which balances various interests]

I'm more supportive than some on the reasoning of Roe v. Wade. One thing that in hindsight that appears questionable was how much it decided at once. The benefits of doctrinal rules developing over time suggests itself. But, the matter here was always going to be a judgment call, balancing various interests.

Roe set forth a trimester scheme and the third trimester was set at viability.* It was not totally clear on why. The basic point was that it was when the fetus could survive on "its" own.

So, why is that important? Well, less clear. The opinion at one point noted its use medically (the opinion gave an important role for doctors and Blackmun used to work for the Mayo Clinic). Also, the opinion had a section noting constitutional personhood arose at birth. A reasonable supposition is that when weighing constitutional interests, survival outside of the womb was a key point.

Justice Blackmun later on (see, e.g., his separate opinion in Planned Parenthood v. Casey) provided a more detailed argument, if still in somewhat summary form. Again, it is mixed with other interests, and overlaps with the argument here. His concurrence there compared forced pregnancy to a form of slavery. If so, the embryo/fetus can be removed safely, the woman's interest would decrease significantly.

Comparatively, the development of the fetus has gotten to a point where the state's interest in life has advanced. Justice Stevens referenced the development of the fetus in his Thornburgh concurrence. Prof. Colb/Dorf's line drawing is more tied to consciousness. Viability as Blackmun notes is a clearer line that roughly overlaps with that. We have not reached the point of artificial wombs and the like.

Another interest cited is having enough time to decide. Again, we are balancing interests here. About 90% of abortions occur in the first trimester, but there are more complicated cases that overlap into the second. This makes something like a six week ban problematic on that grounds alone. But, the fifteen week line, especially in a state with a single clinic, will be problematic there too. Later abortions are generally special cases involving health.

The viability line again takes into consideration all of these interests more than various alternatives. What does a so called "heartbeat" get you? Has a more emotional feel to it. There is also "pain" rules though current science suggests that would overlap with viability. And, why couldn't the state just require use of anesthesia in theory there? If one is concerned with forced pregnancy, a form of slavery (as professors such as Dawn Johnsen and Andrew Koppleman referenced), that would not justify a total ban.

Survival outside the womb? Granting our law disfavors absolutes, that would seem again a logical line. At least a basic national floor.


* I'm not a former law clerk to Blackmun and Kennedy, like two members of the blog; this is obviously not directly addressed to the writer.

Jason S. Marks said...

Professor Colb,

At first, I wondered why you would post such a clear map of an argument to those who will be arguing to overrule Roe. After a momentary pause, I realized those same folks already had this roadmap in mind some time ago, and you just put its bleakness in the light of day. Is the grant a fast train to The Handmaid's Tale? If the Court chooses to do so, without regard to logical consistency or precedent, you may well be right.

In Eisenstadt, the Court held "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." This decision, one year prior to Roe, put into clear focus the idea that contraception belonged to all individuals as it impacted perhaps the most fundamental biological imperative, reproduction. Unlike all other species, however, humans consciously decide whether to "bear or beget a child." It is an act of moral agency, of personal choice.

If we follow the logic that undermines viability, as you describe, how does Eisenstadt survive? How does the State not force every woman to let "nature" take its course and bring every possible zygote or embryo to term?

I think the ramifications of denying all citizens of our country the moral agency of whether to bear or beget a child should be the focal point for the argument, as it may well be the only one that has enough broad political resonance to put an end to this religious pursuit to give the State this much power over pregnancy.

Why did Lawrence and Obergefell happen in short order? In large part because our society realized it did not see the role of government to tell us with whom to mate or have sex. If all Americans, or at least a great majority, can rally around the simple concept that the government should not become the sex police, we might be able to achieve a political moment that arrests the dialogue as one of killing fetuses and frame it as one of moral agency of the most fundamental type -- choosing a partner for intimacy.

Perhaps the time has come to break out of the same back-and-forth arguments/defenses to the choice/life binary and think instead of the libertarian ideal of agency. Is that not the same impulse conservatives cite for gun ownership?

Equal dignity should resonate with all of us as a central tenet of our social structure and constitutional framework, if not a simple Kantian imperative. Unfortunately, we still live in a time where equal dignity does not exist for all. But perhaps the deep division of the last four plus years has guided us to a reevaluation of how important this concept is to all of us in order to survive. The same issues of what lives matter also triggers the same debate on equal dignity. If the outrage over George Floyd could bring us together on some fundamentals (we will have to see), so should the idea of coerced relationships and pregnancies.

Otherwise, we are left with Professor Colb's predictions that the Handmaid's Tale will become a documentary rather than a work of fiction.

Frank Willa said...

I thank the Professors for the crisp analysis, here and there. To me it boils down to 'autonomy' of every individual; the fundamental precept of our Constitution.
Roberts in the Louisiana case made clear he agreed with the dissent; only 'stare decisis' constrained his vote. Or this would have happened then.
It now seems that the Webster ' But the signs are evident and very ominous, and a chill wind blows.' has become a 'polar vortex' settling in on our country.

Coyote said...

"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)."

That would only be true if removing the fetus alive would be safer and no more invasive for the pregnant woman than removing the fetus dead. This is why, for instance, I don't think that artificial wombs can actually be an effective substitute to the abortion pill: If one has a right not to be penetrated, then one also has a right not to undergo invasive surgery when a non-invasive, non-surgical alternative is available. After all, we don't legally require people to donate blood even to save other people's lives.