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The Viability Standard for Abortion Became a Matter of Pragmatic Concern Long After 1868
Andrew Hyman

Ed Whelan wrote a blog post last month titled Supreme Court Should Grant Review in Dobbs v. Jackson Women’s Health Organization.  In the course of his post, he observes:

Laws like Mississippi’s ban on abortions after 15 weeks of gestational age (with exceptions for medical emergencies and instances of severe fetal abnormality) have broad public support and — for those who think it meaningful to look to the laws of foreign countries — are similar to the gestational limit of 14 weeks or earlier that France, Italy, Germany, Spain, Norway, Switzerland, and lots of other European countries have.

He hopes the U.S. Supreme Court hears the case, and, for whatever it’s worth, I agree.  ScotusBlog has the briefs and case history. Let's assume for the sake of argument that the U.S. Supreme Court has legitimate power to resolve all controversies arising in the United States involving “liberty,” broadly construed.  To be sure, I do not believe this assumption is credible or reasonable, because there is much more to the Fourteenth Amendment than that one word in isolation, but let's take this assumption for granted. Under this assumption, does constitutional originalism have anything to say about the viability standard for abortion?  Yes, it does.

As you can see from the opinions in Roe v. Wade, then-Justice Rehnquist pointed out in his dissent that in almost all states abortion was illegal when the Fourteenth Amendment was adopted in 1868.  The majority opinion by Justice Blackmun acknowledged the relevance of that history, and rebutted Rehnquist’s point in an ostensibly originalist fashion: “throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today....”  But Blackmun left out (1) that the major portion he was referring to was over and done with by 1868; and (2) on the day after Roe, the prevailing legal abortion practices became far freer than they had been during any portion of the nineteenth century.  The viability standard that the Roe Court adopted does not seem to have appeared anywhere in abortion law of the nineteenth century, and that is the standard now being challenged in the Dobbs case. 

According to an article last year by Elizabeth Romanis in the Journal of Law and the Biosciences, "With the revelation of a design of a neonatal incubator at the World Exposition in 1896, viability became an increasingly important indicator as a matter of medical ‘pragmatic concern’ in the context of prenatal care."  The knowledge that an unborn child (or fetus) may be born too prematurely to survive and thrive is as old as humanity itself, but that point of viability was basically static until Dr. Martin Couney (born in 1869) developed the first neonatal intensive care unit, which he displayed at the World Exposition in Berlin in 1896.  When the point of viability started moving circa 1896, its movement became very relevant for providing life-saving neonatal care, and it was later (in the twentieth century) that the viability standard was employed in the abortion context.  During the nineteenth century, the then-static point of viability was known, but no jurisdiction nor medical organization nor textbook had ever claimed it was relevant to the question whether abortion should be performed, as far as I know.  I disagree with Elizabeth Romanis’s argument for an abortion right regardless of gestational age, but I entirely agree with her that fetal viability is not a legitimate aspect of the Fourteenth Amendment.

In 1973, Justice Blackmun sought to give the viability standard an illusion of age, when he said, “Most Greek thinkers, on the other hand, commended abortion, at least prior to viability.”  However, as Andrew Adams wrote in 2004, Blackmun was attempting to “misrepresent Aristotle’s views” in order to support his own abortion agenda, and the Ancient Greeks by and large did not support abortion nearly so late as the point of viability.

Blackmun’s opinion for the U.S. Supreme Court revolutionized abortion law:

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.

The Roe opinion is undoubtedly correct that "state regulation protective of fetal life after viability ... has both logical and biological justifications," but so does state regulation protective of fetal life for some time before viability.   As of 1868, when the concept of fetal viability was already widely recognized, it was universally rejected as a legal standard, and it was not a pragmatic concern in the abortion context.

Fortunately, the power of women is far more advanced in 2021 than it was in 1868.  That fact continues to help both women and men to combat sexism through the democratic process, but societal changes since 1868 do not justify either exaggerating or diminishing what was meant by the Fourteenth Amendment in 1868.  From day one, that Amendment coexisted with workable state and territorial laws that paid less attention to how strong a little human being is, and more attention to her markers of life.  That historical context substantially removes any perceived ambiguity in the constitutional text regarding this issue; this is because of the simple presumption that states would be unlikely to simultaneously do one thing pursuant to statutes and the opposite pursuant to a constitutional amendment, and then continue following the statutes instead of the constitutional amendment.