For nearly half a century, the Supreme Court has said the Constitution prohibits states from banning abortion before \u201cviability,\u201d the point at which a \u2026<\/b>
\nFor nearly half a century, the Supreme Court has said the Constitution prohibits states from banning abortion before \u201cviability,\u201d 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\u2019s 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 \u201cviability,\u201d which he said \u201cis usually placed at about seven months (28 weeks).\u201d In the 1992 case Planned Parenthood v. Casey, the court reaffirmed Roe\u2019s \u201ccentral holding\u201d that \u201cviability marks the earliest point at which the State\u2019s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.\u201d It said that judgment \u201cin no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future.\u201d But the technologically contingent definition of viability is not the only reason to question the soundness of this distinction. Roe posited that the ability to breathe, with or without artificial assistance, marks the point at which \u201cthe State\u2019s important and legitimate interest in potential life\u201d becomes \u201ccompelling.\u201d According to Roe, \u201cthis is so because the fetus then presumably has the capability of meaningful life outside the mother\u2019s womb.\u201d According to Casey, viability comes when \u201cthere is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.\u201d This rationale, Mississippi argues, \u201cboils down to a circular assertion: when an unborn child can live outside the womb then the State\u2019s interest is compelling because the unborn child can live outside the womb.\u201d And if \u201cindependent existence\u201d is the crucial consideration, that logic could be extended in ways few would consider morally acceptable, since infants rely on the care of others long after birth, while disabled people may need such assistance indefinitely. From a pro-choice perspective, the viability rule has the advantage of allowing nearly all abortions, fewer than 1 percent of which are performed at 21 weeks or later. But Mississippi\u2019s 15-week limit, which would prohibit about 5 percent of abortions in that state, is not much different on that score. Why 15 weeks? The state legislature\u2019s choice of that limit seems no less arbitrary than the viability rule, especially since its findings suggested several other possibilities, including five to six weeks (when \u201can unborn human being\u2019s heart begins beating\u201d), eight weeks (when a fetus \u201cbegins to move about in the womb\u201d), nine weeks (when \u201call basic physiological functions are present\u201d) and 10 weeks (when \u201cvital organs begin to function\u201d). There are many answers to the question of what point on the continuum from conception to birth another person\u2019s right to life supersedes a woman\u2019s right to bodily autonomy, and none is completely satisfying. That will remain true no matter where the court comes down on the government\u2019s authority to make that call.<\/p>\n