Is Roe Viable?

 

Laurie Shrage

ljshrage@csupomona.edu

 

 

(from Social Responsibility and Abortion: Depolarizing the Debate, forthcoming Oxford U.P.)

 

 

 

 

I.                   Oddness of viability cutoff for abortion “on demand”

a.     other countries

b.     unclear rationale

c.     six-month window escalated controversy

 

II.                Whence viability?

a.     not in Blackmun’s original draft

b.     ABA scheme [*] vs. New York act

c.     Judge Jon Newman, Abele v. Markle [†]

                                                             i.      Connecticut law

                                                          ii.      “live birth” problem

                                                       iii.      state may protect fetus that survives, or could survive, an abortion, without drastically infringing a woman’s privacy

d.     why did Roe majority adopt viability cutoff?

                                                             i.      Blackmun’s original regulatory scheme better addressed concerns about states’ autonomy, the legislature’s authority to make law, and adequate medical facilities for 2nd trimester abortions (i.e., required less judicial activism)

                                                          ii.      “viability” difficult in practice to measure

e.     pragmatic advantages of viability (Marshall and Brennan)

f.      logical advantages of viability

                                                             i.      longer time span for unrestricted abortion regarded as more compatible with privacy reasoning (Powell)

                                                          ii.      treatment dilemmas posed by potential for live birth (Rhoden)

 

III.             Practical and political disadvantages

a.     deepened existing social divisions

b.     backlash and funding cutbacks

c.     new techniques now avoid “live birth” problem

d.     new techniques safer than childbirth, even in late pregnancy (D&E, D&X)

 

IV.           Viability as a proxy

a.     for late gestation (Rhoden)

b.     for sentience (Dworkin)

 

V.              Viable Alternatives

a.     shorter time span for abortion on demand, combined with health and other hardship exceptions for bans in the 2nd trimester (ABA scheme)

b.     compatible with public opinion regarding 2nd trimester abortions

c.     create legislative majorities to remove restrictions that disproportionately affect poor, young, and rural women (e.g., funding cutbacks, mandatory counseling, parental consent without efficient judicial bypass, etc.)

d.     with insurance coverage and adequate providers, narrower window for abortion on demand not a drastic invasion of privacy

e.     designate upper limit for unrestricted abortion that works for cases not involving medical or social hardship (no need to invoke ‘viability’)

 


[*]  “1972 American Bar Association’s Uniform Abortion Act.  This model law permitted abortions performed

within [20] weeks after the commencement of the pregnancy [or after [20] weeks only if the physician has reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or mental defect, or (iii) that the pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age of 16 years].”  From Roe v. Wade, 410 U.S. 113 (1973), note 40.

[†] “The state earnestly urges upon us consideration of the situation where an abortion performed late in a pregnancy results in a “live birth.”  Evidence was offered to show that an aborted fetus had on occasion remained alive for several hours after an abortion operation.  It is not entirely clear which of two alternative contentions the state is making: (a) that the state has a compelling interest in protecting the life of a fetus which actually survives an abortion operation; or (b) that the state has a compelling interest in protecting the life of a fetus in utero which has progressed to the point during pregnancy when it could survive outside the uterus.” From Janice Abele et al. v. Arnold Markle et al., 351 F. Supp. 224 (Conn. September 20, 1972)