Supreme Court should respect Roe's viability line for abortion

This week, the Supreme Court decided to hear a case concerning Mississippi’s “Gestational Age Act.” The law doesn’t ban abortions outright. But it does prohibit them at 15 weeks gestation (except for medical emergencies and severe fetal anomalies).

This ban, as a lower court and the 5h Circuit ruled, is blatantly unconstitutional. It violates Roe v. Wade and Planned Parenthood v. Casey in prohibiting abortions before viability, the stage (around 23-24 weeks) when there is a reasonable chance of survival after birth. With the current composition of the Supreme Court, however, it should come as no surprise that Mississippi persuaded the court to consider upending precedent of five decades.

As many have noted, the case raises the possibility that the court could overturn Roe v. Wade itself. But it need not. Rather than explicitly declare there is no longer a constitutional right to abortion, the court could simply eliminate the viability line. In so doing, it would continue the death of abortion rights by a thousand cuts. But if it ruled as Mississippi hopes, this would be no mere cut – it would be a monumental gutting of reproductive rights.

Mississippi's arguments

Mississippi offers utterly unpersuasive arguments for jettisoning this longstanding, eminently workable line. Nor does it offer the “special justification” needed to overturn precedent. But as some conservative justices have signaled, even the precedent for overturning precedent is up for grabs.

Mississippi claims that the viability line is arbitrary and outdated. However, it has not changed since at least 1992, when Casey reaffirmed the central holding of Roe. Mississippi also insists that this line coarsens society and the medical profession by allowing abortions when fetuses can allegedly feel pain. But that charge ignores the fact that, even if previable fetuses have some of the physical structures necessary for pain perception, the full sensory system necessary to interpret pain does not develop before viability.

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Claiming to worry about maternal health, Mississippi asserts that states should be able to ban abortions previability because late-term abortions are riskier than earlier abortions. Never mind what balance of risk pregnant people might choose for themselves; never mind that childbirth is riskier than even late-term abortions. In fact, Mississippi’s challenge to Roe would put 25 million people at risk of losing abortion coverage, according to Planned Parenthood, subjecting them to more, not less, risk.

Some would be forced to give birth; others might pursue illegal and, as history has shown, dangerous abortions. And, ignoring a whole body of evidence to the contrary, Mississippi insists that banning abortions before viability would promote the psychological health of pregnant people. In fact, being denied the ability to have an abortion is more likely to increase anxiety and lower self-esteem and satisfaction with one’s life than having an abortion.  

If viability line is gone

Finally, despite the discomfort many conservative justices have expressed about turning to international law to make constitutional arguments, Mississippi notes that the United States is one of only a handful of countries, including China, Canada and the Netherlands, that allows abortions up to 24 weeks. Yet Mississippi ignores the fact that many countries with earlier abortion limits provide comprehensive access to contraception; support for prenatal, postnatal and maternal care; and safety nets for struggling families.

In contrast, many of the states that have banned previable abortions are unwilling to offer the kind of support that would help women avoid pregnancy or care for a child. Mississippi, the poorest state in the union, has refused to expand Medicaid, leaving hundreds of thousands of uninsured Mississippians without health coverage. Apparently, Mississippi cares deeply about preserving life in utero, but not so much once a child is born. 

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None of the arguments offered by Mississippi justifies eviscerating the viability line. The rationale for upholding the right to an abortion previability is just as true today as it was three decades ago, when Casey upheld Roe. The viability line has not been unworkable, it is not an “anachronism discounted by society,” and eliminating it would create a “special hardship” on countless pregnant people. In short, “no changes of fact have rendered viability more or less appropriate” as the limit on state authority to ban abortions. 

The only factual change is who sits on the nation's highest court today: six justices who disagree with the central holding of Roe and at least four who voted to hear this case and who apparently do not take precedent seriously. If five of them share that view, it doesn’t matter whether they overturn Roe. Once the viability line disappears, there will be no sustainable limit as to when states can ban abortions, and Roe will be as good as gone.

Sonia M. Suter is the Kahan Family Research Professor of Law and founding director of the Health Law initiative at George Washington University Law School. Follow her on Twitter: @smsuter