The Supreme Court has never justified the conclusion that the Constitution bars any substantial regulation designed to protect fetal life prior to viability. No majority opinion has offered a rationale for the viability rule, and the arguments in non-majority opinions are conclusory or fail to distinguish viability from earlier possible lines. The viability rule is arbitrary because the capacity of a fetus to survive outside the womb says nothing about the value of the fetus from the standpoint of the state or the burden of pregnancy on the mother, the two interests the rule purports to balance. The arbitrary character of the rule is highlighted by evidence that viability can vary for similarly situated fetuses based on race, gender and irrelevant behavioral and environmental factors.
Over a third of the states in recent decades have enacted legislation restricting abortion after twenty-weeks' gestation. Since some fetuses at twenty weeks will be previable, such legislation offers an opportunity to revisit the duration of abortion rights. This article advances four arguments for the constitutionality of a twenty-week statute, including three based on current case law or minor modifications to current case law. First, the risks of late-term abortions are significant, and states should be allowed to adopt twenty-week statutes to promote maternal health by channeling women toward safer alternatives. Second, given the uncertainty of viability determinations, a state should be allowed to adopt a twenty-week statute to protect viable fetuses from being aborted based on erroneous findings of nonviability. Third, new state interests supporting twenty-week legislation should not be subject to the viability rule, which was developed to measure a state interest in protecting fetal life. Fourth, since the justifications for the viability rule were "never explored or analyzed in detail," principles of stare decisis would support reconsideration of the durational issue.
Twenty-Week Abortion Statutes: Four Arguments,
43 Hastings Const. L.Q. 187
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol43/iss2/1