December 7, 2021

Dobbs v. Jackson: The Viability Standard

During the Dobbs v. Jackson Women's Health Organization oral arguments on Dec 1, several major ideas that will influence the judges' decision became clear. The IFRL is releasing a series of posts detailing those concepts so that pro-life advocates can know what is informing the court's upcoming decision in a case that has the potential to change the future of abortion laws in the United States.

The Viability Standard

A major topic of discussion during the oral arguments was the viability standard created by Planned Parenthood v. Casey. Under this precedent, the interest that states have in protecting the lives of unborn babies can only be enforced after the unborn child has reached an age of viability. The federal government recognizes this gestational age to be 24 weeks, although some babies have survived outside of their mothers' wombs after only 21 weeks gestation.

Mississppi Solicitor General Scott Stewart summarized the issue well when he gave his argument before the justices:

"Consider this case: The Mississippi law here prohibits abortions after 15 weeks. The law includes robust exceptions for a woman's life and health. It leaves months to obtain an abortion. Yet, the courts below struck the law down. It didn't matter that the law apply -- that the law applies when an unborn child is undeniably human, when risks to women surge, and when the common abortion procedure is brutal. The lower courts held that because the law prohibits abortions before viability, it is unconstitutional no matter what.

Roe and Casey's core holding, according to those courts, is that the people can protect an unborn girl's life when she just barely can survive outside the womb but not any earlier when she needs a little more help. That is the world under Roe and Casey.

That is not the world the Constitution promises. The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people."

The conservative majority, should they choose to overrule the precedents set by Roe and Casey, have several options of how to do so. They could

  1. simply move the viability standard from one subjective age to another (such as 15 weeks),
  2. return to an "undue burden" standard by which a set of rules would define when states have the right to protect the lives of unborn babies through legislation, or
  3. rule that the Constitution does not take a stance on abortion and return the issue to the states. This would give states the power to limit abortion however they choose.
When Justice Sotomayor challenged Stewart to explain why the current viability line is not workable, he responded that the standard does "is not tethered to anything in the Constitution, in history, or tradition. It's a quintessentially legislative line. A legislature could think that viability makes sense as... a place to draw the line, but it's quite reasonable for a legislature to draw the line elsewhere."

Several Justices and arguments pointed out that setting an arbitrary age or returning to an undue burden standard could create problems for the court in the future.

Justice Kagan asked a question of Stewart that highlighted a problem that could be created if the court were to return to an undue burden standard,
"...if basically the viability line was discarded and undue burden became the standard overall, a standard that according to you is an unclear one, what that would leave the Court with going forward.

You know, I'm just sort of thinking about the great variety of different -- of regulations that states could pass, so whether one is 15 weeks and one is 12 weeks and one is 9 weeks or variation across a wide variety of other dimensions. What would that look like coming to the Court?"

Stewart's response agrees that an undue burden standard could be problematic, but emphasizes that is part of the reason why Mississippi is recommending that the Supreme Court overturn Roe and Casey wholesale. 

"...part of why we've counseled to overrule full scale is that that's the only way to get rid of a number of the problems that I think Your Honor's alluding to.

And that's that when you have the undue burden standard, it's -- it's a very hard standard to apply. It's not objective. The Court looks to the record in each case and what's going on. I mean, the Court in Casey itself said, under this record, this is not an undue burden. You -- you couldn't say necessarily for certain that a certain number of weeks one place would be an undue burden but would be okay another place. But, again, that is the world we have under Casey. So, if the Court upholds this law under the undue burden standard, it would be carrying forward with those features, which I -- and I hope I've answered your question, but I think that's one of the very strong reasons to just go all the way and overrule Roe and Casey, Your Honor."

Several statements by Chief Justice Roberts, however, implied an interest in simply moving the line at which abortion can be regulated from 24 weeks to 15.

“...if you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they've had the fair choice, opportunity to [choose], and why would 15 weeks be an inappropriate line? Because viability, it seems to me, doesn't have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

“...I'd like to focus on the 15-week ban because that's not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People's Republic of China and North Korea.”

While moving the standard would provide a great benefit to the unborn, it would not make the issue go away. To truly protect the lives of the unborn, pro-life advocates would much prefer that the courts send this issue back to the states. If they do so, states can enforce legislation that values and protects their lives.

In our next Dobbs post, the IFRL will take a look at some of the medical statements made by pro-abortion justices and legal counsel.