For nearly half a century, the Supreme Court has said the Constitution prohibits states from banning abortion before “viability,” the point at which a …
For nearly half a century, the Supreme Court has said the Constitution prohibits states from banning abortion before “viability,” the point at which a fetus can survive outside the womb. This week Mississippi, defending its ban on abortions after 15 weeks of gestation, urged the justices to abandon that longstanding rule, which it says never made much sense and cannot be constitutionally justified. Mississippi has a point: The viability rule does not satisfactorily resolve the competing moral claims at the heart of the abortion debate. But the same could be said of the alternatives, including whatever policies state legislators would choose should the court decide that the Constitution does not protect a right to abortion after all. Depending on your perspective, the court either recognized or invented that right in 1973, when it overturned a Texas law that prohibited abortion except when it was deemed necessary to save the mother’s life. Justice Harry Blackmun, who wrote the majority opinion in Roe v. Wade, was initially inclined to draw a line at the end of the first trimester (about 13 weeks) but ultimately settled on “viability,” which he said “is usually placed at about seven months (28 weeks).” In the 1992 case Planned Parenthood v.
