# data[].attributes.headline
PerryUndem: Abortion Attitudes on The role of government in a post-Dobbs world. 

# data[].attributes.subject
PerryUndem: Abortion Attitudes on The role of government in a post-Dobbs world. 

# data[].attributes.attachment_link.title
Abortion Views toward the Role of Government Post-Dobbs PerryUndem Lake NIRH

# data[].attributes.headline
Discussion Guide: Abortion Later in Pregnancy

# data[].attributes.subject
Discussion Guide: Abortion Later in Pregnancy

# data[].attributes.body
"It’s not when should the government should ban abortion, but whether the government should ban abortion at all."

# data[].attributes.headline
Facts Are Important: Understanding and Navigating Viability (ACOG)

# data[].attributes.subject
Facts Are Important: Understanding and Navigating Viability (ACOG)

# data[].attributes.body
"ACOG strongly opposes policy makers defining viability or using viability as a basis to limit access to evidence-based care."

# data[].attributes.attachment_link.readable_text
Understanding and Navigating Viability

The concept of viability of a fetus is frequently misrepresented or misinterpreted based on ideological principles. This perpetuates incorrect and unscientific understandings of medical terms and leads to interference in the practice of medicine. As people across the United States continue to navigate the developing post- Dobbs landscape, it's critical that medical terminology be understood through the lens of science rather than the lens of political application and interpretation. Understanding viability is especially important as policy makers and those who interpret policy draw on the concept of viability in order to inform and create laws. As such, ACOG strongly discourages the inclusion of viability in legislation or regulation.

This document will explain how the term "viability" is used in the context of medical practice during pregnancy and how viability relates to the provision of abortion care and affirm how using terminology inaccurately, including inaccurate use by policy makers, can prevent patients from receiving essential health care grounded in evidence and science.

"Viability" in Two Contexts

While there is no single formally recognized clinical definition of "viability," the term is often used in medical practice in two distinct circumstances. In the first, "viability" addresses whether a pregnancy is expected to continue developing normally. In early pregnancy, a normally developing pregnancy would be deemed viable, whereas early pregnancy loss or miscarriage would not.

In the second, "viability" addresses whether a fetus might survive outside of the uterus. Later in pregnancy, a clinician may use the term "viable" to indicate the chance for survival that a fetus has if delivered before it can fully develop in the uterus. Clinicians most commonly focus on the periviable period, which refers to weeks 20 through 25 and 6 days of a pregnancy. However, according to ACOG and the Society for Maternal-Fetal Medicine's Obstetric Care Consensus #6, Periviable birth, rates of neonatal survival to discharge at this time range dramatically from 23% to 27% for births at 23 weeks, 42% to 59% for births at 24 weeks, and 67% to 76% for births at 25 weeks of gestation. The consensus also notes that deliveries before 23 weeks have a 5-6% survival rate and that significant morbidity is universal (98-100%) among the rare survivors.

Fetal viability depends on many complex factors, of which gestational age is only one. While gestational age may be helpful in predicting the possible chance that the fetus would survive at time of delivery, many other factors also influence viability, such as sex, genetics, weight, circumstances around delivery, and availability of a neonatal intensivist health care professional. Even with all available factors considered, it still isn't possible to definitively predict survival. While some fetuses delivered during the periviable period can survive, they may also experience significant morbidity and impairment.

In the periviable stage, clinicians consider several factors to help determine a general percentage chance of survivability. The resulting percentage is not a definitive diagnosis but rather an estimate created from data points that reflect a population average. While clinicians cannot predict with certainty the outcome for an individual pregnancy or fetus, they can help patients understand their individual risks and circumstances so that they can make informed decisions for their pregnancy and their individual health.

Clinicians who provide obstetric care are in the best possible position to consider all factors when attempting to predict viability either when establishing a pregnancy diagnosis or assessing later in pregnancy. In early pregnancy care, determining viability is a more straightforward diagnosis that suggests that a pregnancy will not result in a live birth regardless of intention. In the periviable period and afterwards, viability often is not a definitive diagnosis at all; rather, a clinician's prediction about viability includes information that clinicians can share with patients so that patients and their families can be fully informed when they make shared decisions about their health care. Policy making around viability interferes in the patient-physician relationship. ACOG strongly opposes legislation or regulation of the clinical definition of viability.

Determining Viability and Other Prognoses

There is no definite diagnosis of viability and no test that can definitively determine whether a fetus could survive outside of the uterus, so determining whether a pregnancy is viable beyond the first trimester is often based on clinical judgment. Clinicians will use ultrasound results and pregnancy hormone levels in early pregnancy to determine whether a pregnancy is developing normally and is thus viable. However, a determination of viability at this stage doesn't mean that the fetus could survive if delivered later in pregnancy.

While it is impossible to definitively declare viability, there are several situations in which a pregnancy will never be viable, regardless of gestational age. Tubal ectopic pregnancies will never be viable, and the treatment for ectopic pregnancy requires ending the nonviable pregnancy. Early pregnancy loss by definition is a nonviable pregnancy and warrants intervention if desired or indicated.

There are also fetal conditions for which survivability will be poor, regardless of when the pregnancy ends. Those conditions include genetic or isolated structural abnormalities in which essential structures do not develop properly and the fetus may only survive a matter of minutes or days after delivery. In these cases, patients may decide to end their pregnancies through abortion, or to choose to give birth with options for palliative care. If patients choose the latter, the American Academy of Pediatrics has stated that patients and families should also be allowed to choose palliative care or attempted resuscitation in light of the high likelihood of death and significant degree of neurodevelopmental impairment that may result from birth. If patients choose to attempt resuscitation, clinicians should discuss with patients and families whether their goal is optimizing survival or minimizing suffering when formulating a plan of care. In such instances, as in the rest of medicine, these compassionate conversations should take place without political interference.

Abortion Later in Pregnancy

Abortions later in pregnancy account for less than 1% of all abortion care. There are a number of reasons why patients may seek care during or after periviability:

As a result of a fetal diagnosis received later in pregnancy that may have a profound impact on the pregnancy's prognosis

As a result of a diagnosis related to risks to their own health during pregnancy that did not present until later in pregnancy

Not recognizing that they were pregnant until later in the pregnancy, which may delay them in presenting to start care

Barriers to obtaining care earlier in pregnancy, including limited financial means, inability to travel, or work or childcare obligations

A combination of any of the above

Viability is just one factor that patients and health care professionals use when considering whether to proceed with or end a pregnancy, and gestational age is only one factor considered when estimating viability. Legislative bans on abortion care often overlook unique patient needs, medical evidence, individual facts in a given case, and the inherent uncertainty of outcomes in favor of defining viability solely by gestational ages. Therefore, ACOG strongly opposes policy makers defining viability or using viability as a basis to limit access to evidence-based care.

While people may have differing views on abortion, those views must not interfere with the relationship between people and their clinicians. People should be able to access the health care they need from the clinicians who understand their patients' situation and have patient health and well-being in mind.

Coding for Viability

Medical coding used for billing purposes uses language that may include viability and may be confusing. For example, the code International Classification of Diseases, Tenth Revision, Clinical Modification (ICD-10-CM) O36.80X0: Pregnancy with inconclusive fetal viability, not applicable or unspecified, is often used in the first trimester when the diagnosis of whether a pregnancy is normally growing cannot be determined. Other diagnosis codes that can be used include:

O02.89: Other abnormal products of conception

O02.9: Abnormal product of conception, unspecified

O00.90: Unspecified ectopic pregnancy without intrauterine pregnancy

O00.91: Unspecified ectopic pregnancy with intrauterine pregnancy

ACOG maintains that using ICD-10-CM codes that include the term "viability" should not be used to restrict the care a patient receives. Questions around denials for reimbursement based on the appropriate use of ICD-10-CM codes can be submitted to the ACOG Payment Advocacy & Policy Portal.

# data[].attributes.attachment_link.description
As people continue to navigate the developing post-Dobbs landscape, it's critical that medical terminology be understood through the lens of science rather than political application and interpretation.

# data[].attributes.body
This memo outlines a broad critique of gestational or viability limits in proactive federal abortion legislation.

# data[].attributes.attachment_link.readable_text
Note: There is no generally accepted definition of "abortion care later in pregnancy" and is variably used to refer to an abortion anytime in the second and third trimesters.
Why Do People Seek Later Abortion Care?
Below are excerpts from a high-level summary of research on later abortion recently released by the Society for Family Planning (SFP) under the leadership of Katrina Kimport, PhD.
"Although most people seek abortions during the first trimester of pregnancy, there is a persistent demand for abortions after 13 weeks of pregnancy as a result of two broad circumstances. First, because people received new information about the pregnancy, such as a serious fetal health issue or a maternal health issue, or newly discovered that they are pregnant." "The second broad circumstance under which people need abortions later in pregnancy is because they experienced insurmountable barriers to abortion earlier in pregnancy, such as inaccessible care providers, difficulty paying for abortion, or inability to travel for care."
Who are the Abortion Seekers Affected by Limits on Later Abortion Care?
Anyone who can become pregnant could need a later abortion. Because we do not live in equitable environments, some groups are more likely to need later care, and are more likely to be impacted by limits . These include young people, low-income people, people living in rural areas, and Black people. Limits on abortion care and bans deepen existing inequality in the US.

According to the SFP summary above, "People whose care is constrained by systems of oppression are disproportionately likely to be prevented from or delayed in obtaining abortion care by gestational duration limits."

How Common is Later Abortion Care?
It is difficult to say with any certainty what percentage of abortions occur after 21 weeks or 24 weeks, or any point later in pregnancy. According to the Center for Disease Control's annual Abortion Surveillance Report , approximately 1% of abortions occur at or after 21 weeks in selected reporting areas. This is widely misinterpreted as meaning that about 1% of all abortions occur after 21 weeks, but the "selected reporting areas" is key to avoiding misinterpretation of this statistic.

The 41 selected reporting areas providing gestational data do not include a number of states and Washington D.C. These states represent about one third of the U.S. population. And in each of these states, abortions are legal beyond 21 weeks: California, Connecticut, District of Columbia, Illinois, Maryland, Massachusetts, New Hampshire, New Jersey, New York State (although NYC is included), Pennsylvania, and Wisconsin. Further, we know abortions are provided beyond 21 weeks in almost all of these places. Many, like California and Illinois are destinations for abortion seekers who have to travel from nearby states with more restrictive gestational bans.

Researchers do agree the frequency of abortions falls off precipitously with each week of pregnancy. While later abortions are uncommon compared to earlier abortions, there are thousands of people who obtain this care every year, and likely more for whom it is out of reach.

Who are the Abortion Providers Affected by Limits on Later Abortion Care?
According to the Abortion Care Network's Communities Need Clinics report, 86% of clinics that provide care after 22 weeks are independent clinics (i.e. not Planned Parenthood), and 100% of clinics that provide care after 26 weeks are independent.

Later abortion care is provided in some hospital settings, and since Dobbs, a number of hospitals have expanded their services. This follows a similar trend in clinics, where many have increased their gestational limits to meet the needs of patients seeking later care.

APPENDIX B - MAJOR EFFORTS TO ESTABLISH A FEDERAL RIGHT TO ABORTION

The Freedom of Choice Act (FOCA), first introduced in 1989 and last introduced in 2004, included a viability limit. Similarly, the Women's Health Protection Act (WHPA), first introduced in 2013 and then as recently as 2023, also includes a viability limit.

Both WHPA and FOCA limited their protections to abortions obtained prior to potential fetal viability, with some exceptions after viability. While these pieces of legislation would not themselves prohibit abortions after viability, they would leave the state-level bans in place that Roe allowed. These bills represent an effort to codify the judicial balancing of the states' versus the individuals' interest that was expressed in the Roe and Casey decisions. The Supreme Court eradicated this balancing and the limited right to abortion in the Dobbs decision in 2022, likewise doing away with the line once drawn at "viability" in federal law.

The Abortion Justice Act was introduced in 2023. This bill establishes a fundamental right to abortion without drawing any gestational or viability limit. In doing so, it extends federal protections to all abortion seekers and providers, throughout pregnancy.

APPENDIX C - VARYING DEFINITIONS OF VIABILITY IN POLICY

State laws and proposed federal laws use inconsistent non-clinical definitions of viability that lead to immense confusion. Below are a handful of the various definitions of viability included in state and federal policies:

Viability has been historically used as a bridge to legal personhood. Citing a line of civil cases dating back to 1900 regarding a right of action for wrongful death or wrongful injury of a viable fetus, the legal theory of a viable fetus being a person jumped to criminal law in a South Carolina Supreme Court decision, . The court held that "It would be grossly inconsistent for us to construe a viable fetus as a "person" for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context." South Carolina then extended this in , saying "Indeed, it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse." This reasoning was then cited by the Alabama Court of Appeals in , which held that the word "child" in the criminal chemical-endangerment statute applies to a viable fetus, "Likewise, in the present case, we do not see any reason to hold that a viable fetus is not included in the term 'child.'" But this decision was overruled, in part, by the Alabama Supreme Court in , where the court extended the personhood from a viable fetus established in the lower court's decision throughout pregnancy to non-viable fetuses. This line of decisions has provided the basis for hundreds of people in the South to be prosecuted under chemical endangerment statutes no matter the outcomes of their pregnancies.

APPENDIX D - STATE LAWS

As of July 1st, 2024 41 states ban abortion at some point or points in pregnancy.
Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, West Virginia Arizona, Florida, Georgia, Iowa, Kansas, Massachusetts, Nebraska, Nevada, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Utah, Virginia, Wisconsin California, Connecticut, Delaware, Hawaii, Illinois, Maine, Montana, Rhode Island, Washington, Wyoming Alaska, Colorado, District of Columbia, Maryland, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Vermont

# data[].attributes.attachment_link.description
Note: There is no generally accepted definition of "abortion care later in pregnancy" and is variably used to refer to an abortion anytime in the second and third trimesters. Why Do People Seek Later Abortion Care? Below are excerpts from a high-level summary of research on later abortion recently released by the Society for Family Planning (SFP) under the leadership of Katrina Kimport, PhD.

# data[].attributes.headline
The Role of the Viability Line in Pregnancy Criminalization

# data[].attributes.subject
The Role of the Viability Line in Pregnancy Criminalization

# data[].attributes.body
This report unpacks the many ways "viability" enables the criminalization of pregnant people.

# data[].attributes.attachment_link.title
The Role of the Viability Line in Pregnancy Criminalization | Pregnancy Justice

# data[].attributes.attachment_link.description
The concept of the fetal viability line is one that is inconsistently defined and erratically applied. This murkiness around viability exposes why the legislation of pregnancy timelines has multifaceted and dangerous consequences that extend far beyond access to abortion. This report investigates the history and implications of enshrining the viability line into law and unpacks the ways in which that entrenchment cultivates the criminalization of pregnant women and pregnancy-able people.

# data[].attributes.headline
American College of Obstetricians and Gynecologists (ACOG) Policy Statement

# data[].attributes.subject
American College of Obstetricians and Gynecologists (ACOG) Policy Statement

# data[].attributes.body
"ACOG strongly opposes any effort that impedes access to abortion care and interferes in the relationship between a person and their healthcare professional."

# data[].attributes.attachment_link.readable_text
Explore frequently asked questions about ACOG's updated Policy on Abortion
All people should have access to the full spectrum of comprehensive, evidence-based health care. Abortion is an essential component of comprehensive, evidence-based health care. As the leading medical organization dedicated to the health of individuals in need of gynecologic and obstetric care, the American College of Obstetricians and Gynecologists (ACOG) supports the availability of high-quality reproductive health services for all people and is committed to protecting and increasing access to abortion.

ACOG strongly opposes any effort that impedes access to abortion care and interferes in the relationship between a person and their healthcare professional. Because the patient-clinician relationship is a critical component of the provision of the highest quality healthcare, any efforts interfering in this relationship harm the people seeking essential healthcare and those providing it. As such, clinicians should not be subject to criminal penalties, lawsuits, fines or other punishments for providing the full spectrum of evidence-based care. ACOG condemns stigma, violence, intimidation and threats against doctors, clinicians, and members of their professional teams and families.

ACOG supports every person's right to decide whether to have children, the number and spacing of children, and to have the information, education, and access to health services to make these decisions. Individuals seeking abortion must be afforded privacy, dignity, respect, and support, and should be able to make their medical decisions without undue interference by outside parties. ACOG advocates to improve access to full-spectrum reproductive services, to integrate abortion as a component of mainstream medical care, and to oppose and overturn efforts restricting access to abortion.
Approval by the Board of Directors
General policy: January 1993
Reaffirmed and revised: July 1997
Intact D & X statement: January 1997
Combined and reaffirmed: September 2000
Reaffirmed: July 2004
Reaffirmed: July 2007
Reaffirmed: July 2011
Revised and approved: November 2014
Reaffirmed: July 2017
Reaffirmed: November 2020
Revised and Approved: May 2022 Explore frequently asked questions about ACOG's updated Policy on Abortion

# data[].attributes.attachment_link.description
ACOG supports the availability of high-quality reproductive health services for all people and is committed to protecting and increasing access to abortion.

# data[].attributes.headline
Society for Maternal-Fetal Medicine (SMFM) Position Statement: Access to abortion care

# data[].attributes.subject
Society for Maternal-Fetal Medicine (SMFM) Position Statement: Access to abortion care

# data[].attributes.body
"The Society opposes legislation and policies that limit access to abortion care or criminalize abortion care and self-managed abortion."

# data[].attributes.attachment_link.readable_text
The .gov means it's official.
Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you're on a federal government site.

The site is secure.
The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.

Abstract

The Society for Maternal-Fetal Medicine supports the right of all individuals to access the full spectrum of reproductive health services, including abortion care. Reproductive health decisions are best made by each individual with guidance and support from their healthcare providers. The Society opposes legislation and policies that limit access to abortion care or criminalize abortion care and self-managed abortion. In addition, the Society opposes policies that compromise the patient-healthcare provider relationship by limiting a healthcare provider's ability to counsel patients and provide evidence-based, medically appropriate treatment.

Keywords: maternal health; maternal mortality; morbidity; policy; reproductive health.

PubMed Disclaimer

Similar articles

Society for Maternal-Fetal Medicine Special Statement: Maternal-fetal medicine subspecialist survey on abortion training and service provision.

Society for Maternal-Fetal Medicine. Electronic address: RHProject@smfm.org; Lappen JR, Vricella LK, Andrews V, Christensen E, Heuser CC, Horvath S, Johnson CT, Louis JM, Luchowski AT, Norton ME, Sagaser KG, Srinivas SK, Werner E, Zahedi-Spung L, Blackwell S. Society for Maternal-Fetal Medicine. Electronic address: RHProject@smfm.org, et al. Am J Obstet Gynecol. 2021 Jul;225(1):B2-B11. doi: 10.1016/j.ajog.2021.04.220. Epub 2021 Apr 20. Am J Obstet Gynecol. 2021. PMID: 33845031

Society for Maternal-Fetal Medicine Special Statement: A critical examination of abortion terminology as it relates to access and quality of care.

Society for Maternal-Fetal Medicine (SMFM). Electronic address: RHProject@smfm.org; Heuser CC, Sagaser KG, Christensen EA, Johnson CT, Lappen JR, Horvath S; Reproductive Health Project Advisory Group. Society for Maternal-Fetal Medicine (SMFM). Electronic address: RHProject@smfm.org, et al. Am J Obstet Gynecol. 2023 Mar;228(3):B2-B7. doi: 10.1016/j.ajog.2022.12.302. Epub 2022 Dec 20. Am J Obstet Gynecol. 2023. PMID: 36563832

A chill wind blows: Webster, obstetrics, and the health of women.

Chavkin W, Rosenfield A. Chavkin W, et al. Am J Obstet Gynecol. 1990 Aug;163(2):450-2. doi: 10.1016/0002-9378(90)91174-b. Am J Obstet Gynecol. 1990. PMID: 2386130

Health Equity in a Post 'Roe Versus Wade' America.

Byron JJ, Avalos M, Xiao KA, Klein AA, Leheste JR. Byron JJ, et al. Cureus. 2022 Dec 1;14(12):e32100. doi: 10.7759/cureus.32100. eCollection 2022 Dec. Cureus. 2022. PMID: 36601141 Free PMC article. Review.

NIH consensus development conference draft statement on vaginal birth after cesarean: new insights.

Cunningham FG, Bangdiwala SI, Brown SS, Dean TM, Frederiksen M, Rowland Hogue CJ, King T, Spencer Lukacz E, McCullough LB, Nicholson W, Petit NF, Probstfield JL, Viguera AC, Wong CA, Zimmet SC. Cunningham FG, et al. NIH Consens State Sci Statements. 2010 Mar 10;27(3):1-42. NIH Consens State Sci Statements. 2010. PMID: 20228855 Review.

# data[].attributes.attachment_link.keywords[]
national center for biotechnology information

# data[].attributes.attachment_link.title
Society for Maternal-Fetal Medicine Position Statement: Access to abortion care - PubMed

# data[].attributes.attachment_link.description
The Society for Maternal-Fetal Medicine supports the right of all individuals to access the full spectrum of reproductive health services, including abortion care. Reproductive health decisions are best made by each individual with guidance and support from their healthcare providers. The Society op ...

# data[].attributes.headline
Guttmacher: State Bans on Abortion Throughout Pregnancy

# data[].attributes.subject
Guttmacher: State Bans on Abortion Throughout Pregnancy

# data[].attributes.attachment_link.readable_text
14 states have a total abortion ban.

27 states have abortion bans based on gestational duration.

7 states ban abortion at or before 18 weeks' gestation.

20 states ban abortion at some point after 18 weeks.

9 STATES AND THE DISTRICT OF COLUMBIA DO NOT RESTRICT ABORTION BASED ON GESTATIONAL DURATION.

# data[].attributes.attachment_link.title
State Bans on Abortion Throughout Pregnancy

# data[].attributes.attachment_link.description
14 states have a total abortion ban. 27 states have abortion bans based on gestational duration. 7 states ban abortion at or before 18 weeks' gestation. 20 states ban abortion at some point after 18 weeks. 9 STATES AND THE DISTRICT OF COLUMBIA DO NOT RESTRICT ABORTION BASED ON GESTATIONAL DURATION.

# data[].attributes.headline
Society of Family Planning (SFP) Position Statement

# data[].attributes.subject
Society of Family Planning (SFP) Position Statement

# data[].attributes.body
"The Society opposes the inclusion of gestational duration limits, including viability, in legislation, laws, initiatives, or regulations."

# data[].attributes.headline
Abortion Providers Call for Change on Anniversary of Dobbs

# data[].attributes.subject
Abortion Providers Call for Change on Anniversary of Dobbs

# data[].attributes.body
"This moment demands a new era of abortion advocacy, one that understands viability and gestational limits are common and equally harmful forms of abortion bans."

# data[].attributes.attachment_link.title
Abortion Providers Call for Change on Anniversary of Dobbs

# data[].attributes.attachment_link.description
Today is the fourth anniversary of the decision in Dobbs v. Jackson Women’s Health Organization, a case that upended the legal framework for abortion access in the United States. The following is a joint statement from the National Abortion Federation and Physicians for Reproductive Health in response to this day:

# data[].attributes.headline
National Abortion Federation Policy Position on Abortion Access Throughout Pregnancy

# data[].attributes.subject
National Abortion Federation Policy Position on Abortion Access Throughout Pregnancy

# data[].attributes.body
As the leading professional membership body for abortion providers nationwide, NAF supports abortion care and access throughout pregnancy and opposes legislation and policies that interfere with that care, including viability limits and gestation-based bans.

# data[].attributes.attachment_link.title
Policy Positions - National Abortion Federation

# data[].attributes.attachment_link.description
NAF’s Policy Positions NAF represents hundreds of individual abortion providers, clinics, and hospital-based clinicians nationwide. As the experts on abortion care, we know public policy has a profound impact on abortion access. Evidence, patient experience, and on-the-ground realities inform NAF’s policy positions. National Abortion Federation Policy Position on Abortion Access Throughout Pregnancy Abortion access throughout…

# data[].attributes.headline
SFP Science Says: Pregnancy gestational duration limits and bans on abortion are harmful

# data[].attributes.subject
SFP Science Says: Pregnancy gestational duration limits and bans on abortion are harmful

# data[].attributes.headline
PerryUndem: Exploring the Impact of a Viability Limit on Support for Ballot Measures 

# data[].attributes.subject
PerryUndem: Exploring the Impact of a Viability Limit on Support for Ballot Measures 

# data[].attributes.body
"Data suggest that a viability limit may dampen strong support for amendments."

# data[].attributes.headline
Who Not When: Reporting on Abortion Later in Pregnancy

# data[].attributes.subject
Who Not When: Reporting on Abortion Later in Pregnancy

# data[].attributes.attachment_link.readable_text
Reporting on Abortion Later in Pregnancy

Reporting on Abortion Later in Pregnancy
A resource for journalists from Who Not When

M ost Americans do not have personal experiences with abortion later in pregnancy, therefore media coverage has a significant impact on public attitudes and policy agendas.

Abortion bans at any point in pregnancy have a devastating effect on the communities most affected by them. The stakes are especially high for Black women and people with low incomes.

This guide aims to help challenge biases and inform accurate, responsible reporting on abortion later in pregnancy and related issues.

Part 1: Level Set

On Neutral Framing

Journalists with experience covering abortion have expressed a sense of high stakes and struggles with neutral framing [ ].

Some may feel pressure to represent "both sides" in their coverage. Too often this has led to overly-politicized framing, the inclusion of political rhetoric, and medically inaccurate information [ ].

Avoid providing a platform for disinformation for the sake of neutrality.

A majority of Americans (69%) incorrectly think most abortions occur 8 weeks or later into pregnancy. In fact, in 2016, nearly all abortions (92%) are performed in the first trimester, with most (77%) performed under nine weeks gestation [ , ].

An overwhelming number (84%) think that more than 5% of abortions occur after 20 weeks into a pregnancy. In fact, only a small percentage occur after 21 weeks. This means Americans believe abortions after 21 weeks are roughly five times more prevalent than they are [ , ].

Most Americans overestimate the health risks of abortion. One study found that a majority (80%) think that childbirth is safer or "about as safe" as abortion. In fact abortion is about 14 times safer than childbirth [ , ].

Four in ten (42%) Americans incorrectly believe Roe v. Wade means that abortion is legal in all cases [ ].

Americans are uninformed about other aspects of reproductive biology as well. For instance, many hold widespread misconceptions regarding the frequency and causes of miscarriage, which is the most common pregnancy complication in the US, affecting about 1 in 4 pregnancies [ , ].

Explain things where possible and do not assume readers understand basic facts about abortion or pregnancy.

There is no clear, widely accepted definition of "later abortion," "abortions later in pregnancy," or "late-term abortions."* Different groups may define or understand "later" based on their perspective:

Abortion Seeker's Perspective: When does the gestation of my pregnancy determine if or how I am able to access care? This varies based on a number of factors.

Public Health Perspective: When do most abortions occur? Over 90% of abortions occur in the first trimester [ ].

Clinical Perspective: When do the means and methods of a procedural abortion change based on clinical considerations? In terms of a procedural abortion performed by a clinician, a vacuum aspiration is generally offered up to about 13 weeks LMP, and either a D&E procedure or induction abortion using medication is offered after. [ ]

Legal Perspective: When does the State's interest in potential fetal life override a pregnant person's bodily autonomy? Most states ban abortion at some point. Even many states where abortions are legal and protected ban abortion between 22-24 weeks LMP, or after potential fetal "viability" [ ]. Guttmacher

Political Perspective: When does the majority of available public opinion polling on the legality of abortion suggest support turns to opposition? Public o pinion polls generally show a drop-off of support for abortions being legal after "viability" or in the third-trimester.

*A note on terminology: the phrase "late-term abortion" is inaccurate and misleading. It was adopted by anti-abortion advocates as an intentionally inflammatory phrase.

In November 2022, the AP Stylebook offered the following:

"Do not use the term late-term abortion. The American College of Obstetricians and Gynecologists defines late term as 41 weeks through 41 weeks and 6 days of gestation, and abortion does not happen in this period.

Instead, use the term abortion later in pregnancy if a general term is needed, but be aware that there are varying definitions of the time period involved. Be specific when possible: abortions after XX weeks when XX is known in the context of the specific story.

Most U.S. abortions take place in the first trimester. By some definitions, any abortions after that - at 13 weeks or later in pregnancy - are considered later abortions. Others use the term for abortions that occur at about 20 weeks or later, or near the time when a fetus is considered viable."

Many laypeople still use "late-term abortion" to describe abortions later in pregnancy-including people who get them. Nevertheless, journalists should never use "late-term abortion" unless they are quoting someone. We recommend following AP Stylebook's guidance to use specific weeks or "abortions later in pregnancy." We also use "later abortion."

Try to be specific when talking about abortion later in pregnancy. Readers may be working with different definitions and levels of understanding.

*This resource will generally refer to abortions after the first trimester as later abortion*

What's important to know about abortion later in pregnancy:

People are confident in their decision to get an abortion, with (95%) of people saying it was the right decision for them. The most common emotion reported is relief [ ].

Almost all (92.7%) abortions take place by the 13th week of pregnancy. Abortions after 20 weeks represent a small percentage of all abortions, and the vast majority occur close to 20 weeks, becoming increasingly rare with each week of pregnancy [ , ].

Abortion is safe throughout pregnancy. The abortion complication rate is much lower than the rate of complications experienced during pregnancy or during common procedures such as wisdom tooth extraction [ , , ].

People of color, people who are relatively young, people with lower incomes, and people with less education have been found to seek abortions later in pregnancy at higher rates [ , , ].

Most people seek abortions due, in part, to economic insecurity [ , ]. Most abortion seekers are poor or low income [ ] and their health insurance does not cover abortion care [ Guttmacher ]. Guttmacher

Later abortion care is expensive. The average cost for an abortion later in pregnancy was over $2,000 in 2008, but may cost upwards of $10,000 or more. Abortions accessed in the 3rd trimester may cost $20,00-$30, 000 . Half of abortion seekers live below the Federal Poverty Level, with income less than $13k/year for an individual [ ].

Many people are not able to access desired abortion care. Researchers estimated over 4000 abortion seekers were denied desired abortions due to gestational limits in 2008, and approximately one in four people who would have Medicaid-funded abortions instead give birth when this funding is unavailable [ , ]. Guttmacher

Views on abortion bans later in pregnancy are shifting after the Dobbs v Jackson decision . Public opinion polls show the majority of Ameicans support access to safe and legal abortion. And increasingly, polling suggests that Americans are not supportive of government interference in abortion or abortion bans at any point. [ ]

Abortions after the first trimester are expensive, difficult to reach, and highly stigmatized. And yet people move mountains to get them.

Research suggests that abortions take place later because of two factors, often working in combination [ ]:

New Information: People learn new information later in their pregnancy that they couldn't have known before. Examples might include recognizing a pregnancy later, learning about a fetal or maternal health issue, or a disruptive life event like loss of a job or partner.

Barriers that Delay: Some barrier or obstacle that leads to delays in accessing care. Examples include laws that push care out of reach, logistical obstacles like travel or child care, or financial barriers like raising money for the procedure.

These "two paths" that have been identified are helpful for understanding how people find themselves seeking abortion care later in pregnancy.

Part 2: Five Things to Keep in Mind

1. We're Talking About Bans

Abortion is most often covered as a political issue, and the debate is over its legality. Polls on abortion ask whether it should be legal [ , , ] with a question like this one :

"Do you think abortion should be legal in all cases, legal in most cases, illegal in most cases, or illegal in all cases?"

Abortion bans are common

A lot of reporting on abortion fails to include the impact of abortion restrictions, and particularly bans based on gestational age or potential fetal viability. These policies should be evaluated based on what they do, not what they purport to do.

Bans don't solve problems

Bans cause delays

Abortion restrictions and bans do delay someone who is trying to reach care, pushing them later into pregnancy when care is more expensive and harder to access [ , ].

Bans create pressure

Bans cause harm

Bans prevent people from being able to get a desired abortion, either directly by prohibiting care or indirectly by increasing burdens that push care out of reach.

Have four times greater odds of living below the Federal Poverty Level (FPL)

Are more likely to have debt 30 days or more past due, to have negative public records, such as bankruptcies and evictions, and significantly less likely to have a prime credit score in the two years following the birth

Are more likely to report not being able to pay for basic living expenses like food, housing and transportation for them and their children

Are less likely to have aspirational life plans or have a full time job

Are more likely to experience serious health complications

Are more likely to stay tethered to abusive partners

Are more likely to have children living in poverty and their children have more difficulty meeting developmental milestones

Bans exacerbate inequity

Bans criminalize pregnancy

By enshrining a controlling State interest in potential fetal life, bans create pathways to the control and criminalization of pregnant people beyond abortion care. People who are in groups already over-policed and surveilled are routinely criminalized for behaviors while pregnant and punished for pregnancy outcomes including miscarriage and stillbirth [ , , Interrupting Criminalization , ]. Guttmacher

When covering abortion later in pregnancy and its legality, focus on abortion bans and their very real, very measurable impact. Proponents of bans should be held accountable for their impact.

2. Individuals v. Systems

Social, economic, and environmental conditions influence pregnancy decisions along with a range of other health outcomes. Most abortion seekers, no matter the gestation of their pregnancy, cite that these social determinants of health drove their decision to get an abortion [ ]. Abortion seekers are concerned about their well-being and that of their families, and research has validated their concerns [ ].

Most people who obtain a later abortion would have preferred to access an abortion earlier. Contrary to popular rhetoric, patients do not wait. Rather, they are delayed. The same factors linked to health disparities more broadly are linked to delays when trying to obtain abortion care [ ]. The of bans and barriers that cause delays are not experienced equally.

Opposition to later abortion often comes down to judgment of a hypothetical individual absent consideration of their circumstances or the systemic factors at play. Accessing an abortion as soon as you would like or parenting in a safe environment with dignity- these are opportunities not available to everyone, and they are unequally distributed.

When talking about later abortion, including systemic factors and underlying inequities that influence reproductive choices is critical. It ensures people get the full picture.

3. Later Recognition of Pregnancy

Why do most people seek abortions later in pregnancy? The largest delaying factor for most later abortion patients is later recognition of pregnancy [ , ].

Disparities in pregnancy awareness align with disparities in unintended pregnancy, abortion, and other health outcomes.

4. Fetal Diagnosis Myth

A pervasive myth about later abortion is that they are mainly sought in cases of severe fetal impairment or where there is a risk to the pregnant person's physical health. This is simply not true.

This myth contributes to a hiearchy of deservedness around later abortion care. It stigmatizes people seeking care absent fetal diagnoses who represent the majority of later abortion seekers.

This myth also exacerbates ableism. Pregnancy decision-making occurs within an ableist society. The notion that later abortion is only morally acceptable after receiving a diagnosis of a fetal impairment suggests that an eventual disability is inherently a catastrophic outcome. Disability rights advocates have rightfully taken issue with this framing, often while defending the right to abortion outright based on principles of self-determination and bodily autonomy [ , Women Enabled , , ]. Sins Invalid

There are certainly pregnant people who receive a diagnosis of a fetal impairment who then choose to seek an abortion. While these experiences do not represent the majority of later abortion seekers, they too are affected and harmed by abortion bans [ , ].

And finally, the myth that most later abortions are sought for fetal diagnoses disguises the impact of abortion bans. Most bans have narrow exceptions for rape, physical health risks, and fetal diagnoses. If people believe that later abortion seekers are covered by these exceptions, they may not understand how many people are impacted by time-based abortion bans.

When covering abortion later in pregnancy, avoid propagating the myth that most later abortions are sought after a fetal diagnosis. Be wary of framing that reinforces a hierarchy of deservedness.

5. On "Compromise" in Abortion Law and Policies

Most people seem to recognize the need for abortion care, but seek to balance this with their concerns about post-viability abortion care and their understanding of fetal pain. Americans have sought to manage these conflicting feelings with a sort of compromise- allow most abortions but ban abortion at some point later in pregnancy.

For an abortion seeker however, their ability to access an abortion is binary- they are either able to obtain the abortion they need or not, and the consequences are profound.

The harms of denying someone an abortion are measurable. Depriving someone of the right to bodily autonomy and to control the course of their life violates their human rights and dignity [ , , SisterSong , ].

Pregnant people tend to view their pregnancies differently as they progress. Factors like potential fetal viability and the possibility of fetal pain may become important factors considered by patients and providers, but they are not the only concerns that drive decision-making during a pregnancy.

The question at hand in abortion bans is whether these complicated issues should be navigated by the individual moral judgment of those affected or by the State's enforcement of an absolute moral judgment.

Viability as a Legal Standard

On Fetal Pain

Discussions of fetal pain generally focus on fetal development of neurological pathways for pain perception and the potential for psychological recognition of pain.

On Exceptions

Abortion bans with exceptions for nonviability, rape, or incest would seem to satisfy many people's concerns about later abortion. However, as articulated by Elizabeth Nash of The Guttmacher Institute:

Anti-abortion policymakers see exceptions as loopholes and designed them to be difficult if not outright impossible to use even for the few who qualify under their narrow limits. Rather, exceptions function mainly as PR tools to make abortion bans seem less cruel than they are and distract from the inhumanity of the ban itself. [ ] Guttmacher .

Bans are the Wrong Response to Discomfort

Ultimately conflicts between concern for the fetus and concern for the pregnant person cannot be resolved by punishment- by denying people abortions and criminalizing the provision of care. The State's carceral response to these questions, rooted in notions of guilt and punishment, are contrary to medical ethics and public health principles.

When covering abortion later in pregnancy, evaluate any proposed compromise based on the impact on people affected by it. Remember that viability and fetal pain are not the only factors that drive decision-making during pregnancy.

Part 3: Resources

Quick Coverage Considerations

Who to Include: Center the perspectives of abortion seekers, providers, abortion funds, and practical support organizations. Most readers and politicians do not have lived experiences with abortion care later in pregnancy, so include people who do in your coverage.

Bridge the Divide: Most abortion seekers are not like most readers or voters. Half live below the poverty line compared with 10% of Americans. More than half are people of color whereas most Americans are Non-Latino white. Abortion seekers skew younger. Help readers understand abortion seekers beyond their acute need for abortion care.

More than a Woman's Issue: While most abortion seekers are women, trans men and non-binary individuals get pregnant and obtain abortions. To be accurate, be sure to use gender-neutral or gender-inclusive language to describe abortion seekers.

Images are Powerful: Most articles covering abortion use images of either protests or very pregnant bellies with the person's head cropped out. Neither are good. Protest images reduce abortion to a heated political issue. Pregnant bellies literally cut out the pregnant person and suggest abortions happen much later than they do.

Push Back: A lot of journalists who cover abortion struggle with editors who may be less informed, hold views informed by stigma and misinformation, or fear blowback. Push back on them. The stakes are incredibly high.

Do No Harm: Mishandled abortion coverage is not benign- it shapes opinions and policies that impact people's lives in very real ways. Check your coverage for misinformation, unfounded assumptions, myths, stigmas, implicit bias, racism, classism, and ableism.

Further Education, Information and Expertise

Help Us Improve This Resource:

If you see something that isn't right or have feedback, please reach out: hello@patientforward.org

Who Made This?

Who Not When is made and maintained by Patient Forward , a Project of NEO Philanthropy. Patient Forward develops resources to challenge time-based abortion bans and other obstacles to abortion care. Our work centers people who need abortion care later in pregnancy in advocacy campaigns, media initiatives and abortion policy.

We are fighting for a future where everyone who wants an abortion can get one without delay, without judgement, and without going broke.

# data[].attributes.attachment_link.title
Who Not When: Reporting on Abortion Later in Pregnancy

# data[].attributes.attachment_link.description
Reporting on Abortion Later in Pregnancy Reporting on Abortion Later in Pregnancy A resource for journalists from Who Not When M ost Americans do not have personal experiences with abortion later in pregnancy, therefore media coverage has a significant impact on public attitudes and policy agendas.

# data[].attributes.headline
Better Responses to Opposition Claims “Up Until Birth for No Reason”

# data[].attributes.subject
Better Responses to Opposition Claims “Up Until Birth for No Reason”

# data[].attributes.body
Our messages push back and reject abortion bans altogether without relying on false claims.

# data[].attributes.headline
PPFA Impact Research: Key Findings and Guidance for Abortion Policy Messaging

# data[].attributes.subject
PPFA Impact Research: Key Findings and Guidance for Abortion Policy Messaging

# data[].attributes.body
When speaking about abortion, instead of talking about when abortion should be legal, it is better to underscore who gets to make decisions on abortion. This is the strongest rebuttal to laws that would restrict abortion access, as well as the best proactive message when advocating for abortion throughout pregnancy.

# data[].attributes.headline
Guttmacher: Focusing on Exceptions Misses the True Harm of Abortion Bans

# data[].attributes.subject
Guttmacher: Focusing on Exceptions Misses the True Harm of Abortion Bans

# data[].attributes.attachment_link.readable_text
Originally published in Ms. Magazine.
If you're following the debate around the total bans on abortion in place in states across the country, you might think what makes them extreme and harmful is whether they have certain exceptions, like those for people experiencing life-threatening pregnancy complications. Harrowing stories about people in these circumstances in Texas, Louisiana, and more continue to generate huge media attention because they so clearly expose the depravity of anti-abortion policies.

But this overwhelming focus on whether bans have exceptions and whether people can get abortions in extreme situations distorts our perception of what is actually happening in states that ban abortion-which is that abortion bans are extreme and harmful because they ban abortion, period.

Losing sight of that simple truth means ignoring and even inadvertently stigmatizing most people who want and need abortions. As the focus shifts to the 2023 state legislative sessions, where we expect lawmakers in states like South Carolina and Ohio to further restrict abortion care, correcting public narratives about abortion bans is an urgent priority. To do that, we need to reframe how we discuss exceptions in three critical ways:

Exceptions are designed to be unworkable.

Anti-abortion policymakers see exceptions as loopholes and designed them to be difficult if not outright impossible to use even for the few who qualify under their narrow limits. Rather, exceptions function mainly as PR tools to make abortion bans seem less cruel than they are and distract from the inhumanity of the ban itself.

Every abortion ban currently being enforced has an exception for the life of the pregnant person, and some have exceptions in cases of severe health conditions. However, providers across the country have warned that these exceptions use vague, non-medical language, which is extremely difficult to follow and apply. Combined with the substantial legal risk to providers from misinterpreting a legal exception-including large fines, imprisonment, and loss of a license- this means important health decisions are being made by lawyers, not medical professionals. As a result, pregnant people suffer because their medical condition must deteriorate to the point at which the exception is met, and the provider can avoid criminal liability.

Rape and incest exceptions are less common and present their own barriers, making abortion difficult, if not impossible to access. In order to qualify, patients often must jump through a series of hoops-including reporting the assault to law enforcement, which evidence show many survivors don't do.

For many, this hurdle may be insurmountable, because it is traumatizing, because they distrust law enforcement, or because it puts them at risk of retaliation from their perpetrator.

Conversely, laws that do not require a police report have their own pitfalls, placing providers in a difficult position of having to potentially prove the assault to meet the requirements of the exception.

Focusing on exceptions ignores the vast majority of people harmed by abortion bans.

Even with Roe still in place, there were huge inequities in who was able to get an abortion-and the current situation is worsening dramatically as more than a dozen states have already banned abortion outright.

Data shows that about 75% of abortion patients are low-income, in their 20s and are already parents. Black and Brown people make up a disproportionate share of abortion patients, due to higher rates of unintended pregnancy that reflect pervasive health disparities rooted in a long history of racism.

These groups have the fewest resources to overcome the enormous logistical and financial barriers that abortion bans create. And just before Roe was overturned, Guttmacher research showed that the need for abortion care was rising, with 930,000 abortions being obtained in the United States in 2020, an 8% jump from 2017.

The harm abortion bans are causing every single day is enormous, and the focus on exceptions distracts from the pain and damage abortion bans inflict on predominantly marginalized communities.

The focus on exceptions creates a false hierarchy of who is deserving of care.

Stories that center people whom exceptions support (if only on paper) resonate because they expose the abject cruelty of anti-abortion policymakers. But this focus also fuels the perception that people in some circumstances are more deserving of an abortion than others.

Inadvertently ranking the validity of people's reasons for seeking abortion care challenges their agency and right to bodily autonomy. In the long term, this feeds into the anti-abortion movement's false and dangerous narrative that seeks to delegitimize the reasons people have abortions -with the ultimate goal of outlawing abortion for anyone, anywhere, and for any reason.

Even though exceptions don't work in practice, people in those circumstances, and anyone who needs an abortion, should have the right to compassionate and accessible abortion care. But when we let exceptions dominate the narrative about abortion bans, we fail to recognize the true scale and depth of harm that abortion bans intentionally inflict.

In this post- Roe reality, recognizing that exceptions are not workable is just the first step. Understanding everyone's equal right to reproductive health and autonomy is the foundation we need to build on.

In the end, deciding that they need an abortion is the only reason anyone should ever need to get one.
Originally published in Ms. Magazine.

# data[].attributes.attachment_link.title
Focusing on Exceptions Misses the True Harm of Abortion Bans

# data[].attributes.attachment_link.description
Originally published in Ms. Magazine. If you're following the debate around the total bans on abortion in place in states across the country, you might think what makes them extreme and harmful is whether they have certain exceptions, like those for people experiencing life-threatening pregnancy complications.

# data[].attributes.body
"Insofar as late-term abortion restrictions chill doctors’ willingness to perform near-late-term abortions, they limit women’s access to such constitutionally protected near-late-term abortions."

# data[].attributes.headline
Medical Students for Choice Statement on Restrictive Language in State Abortion Ballot Initiatives

# data[].attributes.subject
Medical Students for Choice Statement on Restrictive Language in State Abortion Ballot Initiatives

# data[].attributes.body
"Codifying the most problematic components of Roe is a tactic that completely rejects the reproductive justice framework, placing greater importance on the rights of some while sacrificing abortion access for people most impacted by abortion bans."

# data[].attributes.attachment_link.readable_text
Medical Students for Choice is deeply concerned by the trend of state coalitions organizing to enshrine restrictions on abortion access into state constitutions. Codifying the most problematic components of Roe is a tactic that completely rejects the reproductive justice framework, placing greater importance on the rights of some while sacrificing abortion access for people most impacted by abortion bans.

There is no test that definitively determines viability. Viability should never be used to restrict access to care, and it absolutely should not be enshrined in state constitutions as a requirement to access abortion.

MSFC reaffirms our unwavering commitment to supporting any medical student or physician in training seeking abortion and family planning education, and we urge the movement for reproductive rights to stop attempting to resurrect Roe and start organizing for the abortion access Americans deserve.

Pamela Merritt
Executive Director
Medical Student for Choice

# data[].attributes.attachment_link.title
Medical Students for Choice Statement on Restrictive Language in State Abortion Ballot Initiatives - Medical Students for Choice

# data[].attributes.attachment_link.description
Medical Students for Choice is deeply concerned by the trend of state coalitions organizing to enshrine restrictions on abortion access into state

# data[].attributes.headline
A Growing Share Of Americans Think States Shouldn't Be Able To Put Any Limits On Abortion

# data[].attributes.subject
A Growing Share Of Americans Think States Shouldn't Be Able To Put Any Limits On Abortion

# data[].attributes.attachment_link.readable_text
Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.
Update, January 19, 2024: After months of court battles and internal turmoil, a coalition of abortion-rights advocates in Missouri announced on Thursday that it will begin collecting signatures for a 2024 ballot measure that includes a fetal viability line-protecting abortion access before viability, but not after. Planned Parenthood of the St. Louis Region and Southwest Missouri has joined the coalition, known as Missourians for Constitutional Freedom, and is formally backing the ballot initiative effort despite its earlier opposition to enshrining the viability standard in the state constitution.
Not long after Election Day last November, Pamela Merritt joined a call with other abortion-rights activists in Missouri to discuss a daring proposal: sidestepping the state's ruling Republicans by directly asking voters whether to add abortion rights to their state constitution. The group hoped to capitalize on a recent trend. Since the Supreme Court overturned Roe v. Wade in June of 2022, pro-choice voters had been showing up to the polls in force, rejecting anti-abortion ballot initiatives in Kansas, Kentucky, and Montana. They went even further in California, Michigan, and Vermont, passing state constitutional amendments to guarantee, among other things, the right to choose abortion.

This unbroken string of victories has energized advocates who see ballot initiatives as a key tool in the post- Roe world, especially in states controlled by Republicans. Even in Missouri, where the anti-abortion movement was so successful that only one clinic remained by 2022, national progressive organizations smell opportunity. "Right now, every single state is dealing with a pro-abortion, riled-up base that wants a Kansas," Merritt says, referring to the special election about abortion last year that drew greater turnout than any primary in the state's history. "There's pressure."

Merritt, who runs the advocacy group Medical Students for Choice, is a veteran of the reproductive justice movement. She has seen how, since Roe, the anti-abortion crusade forced advocates to compromise on their principles again and again. How the flawed laws that resulted often required providers to follow rules not based in science or medicine, and made abortion a right in name only in large swaths of the country. And how the limitations fell hardest on those with the least means or ability to travel to get care. With the slate wiped clean without Roe, Merritt and like-minded activists see an opportunity to build a more comprehensive, and holistic, future of abortion access.

"We, as a movement, have an opportunity right now to live our values."

But not everyone at the Missouri ballot table was on the same page about how to move forward. In the months following the 2022 election, the group-a mix of advocates including the state ACLU and Planned Parenthood affiliates and the local activist group Abortion Action Missouri-splintered. Some members, including Merritt, wanted to go with language that would enshrine a broad right to abortion. Others wanted to consider an amendment with baked-in compromises in the hopes of winning over more voters. They proposed letting the state impose or preserve restrictions that the larger abortion-rights movement often condemns, including a ban on procedures after so-called fetal viability-the hard-to-pin-down point in pregnancy at which a fetus has a decent chance of surviving outside the uterus. (Viability limits often include an exception for abortions needed to protect a pregnant patient's life or health.)

The disagreement became so heated that Planned Parenthood of the St. Louis Region and Southwest Missouri, operator of the last clinic standing in the state in 2022, paused its work on the ballot effort this spring, and has spent months warning its coalition partners about the harms of the proposed restrictions. "We, as a movement, have an opportunity right now to live our values," says Colleen McNicholas, the affiliate's chief medical officer. Versions of the ballot initiative currently on the table would "recreate the very system that led to fewer than 100 Missourians being able to access abortion" in-state each year, she says.

Mallory Schwarz, the executive director of Abortion Action Missouri, disagrees. "These policies would restore a level of access that the state hasn't seen, ever," she says. "It's frustrating to see partners try to hold Missourians hostage while waiting for the moment for that perfect policy."

This fracturing has cast doubt on whether a version of the initiative will even make it to the ballot next year. The effort is already facing vigorous opposition from GOP state officials who have falsely described the proposals as costing billions and allowing for "dangerous, unregulated, unrestricted" abortion access. At present, it's unclear whether a campaign for an abortion-rights constitutional amendment would receive the support of the state's sole former abortion provider-or from the national Planned Parenthood Action Fund, whose national campaigns director, Sarah Standiford, says it will "follow the lead of state affiliates."

Unwilling to support a ballot measure that comes with restrictions on abortion access, Merritt and Medical Students for Choice stepped back from the coalition in July. "The abortion rights and health movement has been in a death spiral of compromise for about 30 years," Merritt says. "We have an opportunity here to build something better, and we're not even talking about it."

This battle over what the abortion-rights movement should fight for is playing out across the country, as activists in Ohio, Arizona, Florida, Nebraska, and South Dakota are working on ballot initiatives, mostly for the 2024 cycle.

To Erika Christensen and Garin Marschall, the story in Missouri-and particularly the fight over fetal viability limits-follows familiar patterns. The wife-and-husband team became activists after Christensen had to travel for her own abortion later in pregnancy. In 2016, doctors told her that the baby boy she'd been carrying for 31 weeks wouldn't be able to breathe outside her body. But Roe only protected the right to abortion until viability, and at that time her home state of New York had a criminal ban on terminating pregnancies after 24 weeks unless a mother's life was in danger. Christensen flew to Colorado, a state without a viability limit, to get a shot that would stop the baby's heart. Then, because she had preexisting health conditions, she flew home to deliver him with her doctors.

The legal concept of a "viability" line has never matched medical reality. The idea was conceived of by a clerk for Justice Harry Blackmun who sought a middle ground between abortion supporters and opponents when the Supreme Court was considering Roe v. Wade in the 70s. Today, it is generally thought of as occurring about 24 weeks into pregnancy. But the American College of Obstetricians and Gynecologists (ACOG), a leading medical association, describes viability as a complex calculation involving gestational age, sex, genetics, weight, and the circumstances of delivery, such as whether intensive neonatal care is available. "It's talked about as this very simple line in the sand, and that couldn't be further from the truth," says Jenni Villavicencio, one of a handful of doctors in the country who provides abortions in all trimesters. For that reason, ACOG says it strongly opposes policymakers "using viability as a basis to limit access to evidence-based care."

Viability is "talked about as this very simple line in the sand, and that couldn't be further from the truth."

As of 2020, fewer than 1 percent of abortions took place after 20 weeks' gestation. Patients are generally experiencing harrowing circumstances: In addition to women like Christensen, who receive catastrophic news about a pregnancy, they tend to be very young, in an abusive relationship, or facing other tremendous barriers to getting care. "I totally understand why folks may have complex emotions or even react negatively to the idea of abortion later in pregnancy," Villavicencio says. "What I would hope is that folks will recognize that these are really unique situations in which people are making decisions that make sense for them in their own lives, and they're doing so extraordinarily thoughtfully."

Not long after Christensen flew to Colorado to end her pregnancy, she and Marschall joined a campaign to remove New York's criminal penalties for later abortion. Yet the law they helped pass, the Reproductive Health Act of 2019, ultimately maintained a viability line in the form of civil sanctions for doctors who performed abortion after 24 weeks, with exceptions to preserve the mother's health, and in cases of fatal fetal diagnoses. The pair say that state senate Democrats shot down their pleas to consider a more expansive version.

Disappointed with the limitations of the new law, they launched a philanthropy-funded project called Patient Forward to keep advocating against viability bans nationally. They soon realized they had their work cut out for them. Over the last half a year, Marschall and Christensen have watched with dismay as coalitions in Ohio, Florida, and Missouri proposed measures that would protect abortion but allow viability bans. As they researched the initiatives, they began hearing from colleagues on the ground that the language was based on confidential polling. "What they were telling us is that we have to compromise, because if we go for broad protections with no viability limit, it'll never pass," Christensen says. The conclusion is in line with the popular sentiment that later abortion is unpalatable-an idea reinforced by right-wing politicians when they decry "abortion up until the moment of birth" in response to any pro-choice proposal, falsely implying that later abortions are common, casual decisions.

Without access to the polling data their colleagues were citing, Patient Forward decided to commission a survey of its own this summer, asking the public opinion research firm PerryUndem to measure whether voters were more likely to support an abortion-rights amendment if it permitted viability restrictions.

To the couple's surprise, they were not. The findings that came back showed that nationally, voters were 15 points more likely to "definitely vote yes" on an expansive abortion-rights ballot initiative, compared with one that allowed a viability limit. When asked why, most respondents said they did not want government controlling any decisions about abortion. "I literally cried when I read the results," Christensen says. "I felt really encouraged. I was like, Oh, my God, here's pages and pages of people who aren't immediately talking about how I'm a monster."

She and Marschall shared the results of their poll with other advocates. They hoped it might hold sway with a coalition of advocates in Arizona who were thinking through a constitutional amendment to enshrine abortion rights, even though they were aware that the coalition would base its decisions on its own, state-specific data.

But in early August, when the state coalition, Arizona for Abortion Access, filed a proposed amendment with the Secretary of State's office, they included language to restrict access to abortions after the point of fetal viability, except for when needed to protect the health or life of the pregnant person. "Based upon the data that we received from our polling, the language with viability was the strongest option," Planned Parenthood Advocates of Arizona senior advisor Chris Love told a Washington Post reporter. "That's the option that we think most Arizona voters will go with."

The day after the announcement of the Arizona campaign, Indivisible published a memo gushing about how its own data indicated that the coalition's measure would motivate pro-choice voters and dampen Republican turnout-"boosting Democratic candidates up and down the ticket in a state with numerous, must-win competitive races at the Presidential, Senate, House, and state legislative level."

In a statement, the coalition says it "listened to Arizonans and designed a measure that provides meaningful protections for abortion that can win at the ballot box next November." Disappointed by the language, Christensen and Marschall are resigned to keep working to lift viability limits in the long term, if not the short. "It's so hard, because it's too late," Christensen says of the proposal in her state. "There's nothing I can do to change it."

In Missouri, the quest to enshrine more expansive abortion rights in the constitution faces a tough road ahead. A survey conducted by St. Louis University and YouGov in August 2022 found that just 48 percent of voters would support an amendment to overturn the state's ban on abortions; 13 percent were unsure. A majority thought it should be legal to get an abortion in the first 8 weeks of pregnancy. But support fell drastically for legal abortion later in pregnancy.

When the Missouri coalition sat down to craft its own polling late last year, the discussion over what to ask voters grew tense. Merritt, the Medical Students for Choice director, saw it as a red flag that other organizers wanted to quiz voters on whether they'd support versions of an amendment with restrictions. In her mind, the group shouldn't even consider language that contradicts doctors' understanding of pregnancy and leaves out vulnerable community members. "I don't care if the polling shows that parental notification and viability show the ballot winning with 90 percent of the vote," she says. "I'm asking medical schools to maintain abortion and family planning curriculum that is medically accurate, evidence based, patient centered-and we've got abortion-rights groups advancing viability?"

The coalition's internal polling has not been made public. Yet drafts of the group's proposed legislation, filed with the Missouri Secretary of State in March, hint at what it might have said. All 11 versions establish a right to "reproductive freedom"-the ability to make and carry out one's own decisions about abortion, contraception, and healthcare throughout pregnancy. They also would set a very high legal bar for how the government can regulate abortion. But 10 of the 11 versions contain exceptions to that high bar. They would let the state require parental consent for minors seeking abortions (while allowing doctors to grant exceptions in certain cases); ban abortion after 24 weeks or viability (unless a patient's health is endangered); and maintain an existing law forbidding Medicaid funding for abortion care.

The coalition is still deciding whether to proceed with the amendment campaign at all, much less which version to run. Their decisions are complicated by legal fights with state GOP officials over how the various proposed amendments would be described in the voting booth.

"I'm asking medical schools to maintain abortion and family planning curriculum that is medically accurate, evidence based, patient centered-and we've got abortion-rights groups advancing viability?"

Schwarz, the leader of Abortion Action Missouri, says the decision about whether to proceed will depend on how those amendment descriptions perform in future public opinion polls. The Missouri electorate, she says, has been subject to "years of political indoctrination and racist and classist messaging" affecting their opinions on abortion rights. She sees a campaign for a constitutional amendment as a chance to educate more voters and permanently shift their thinking. Yet without strong polling now, among the current electorate, the campaign will struggle to secure the funding it needs to collect signatures and ultimately win the election. Tony Rothert, director of integrated advocacy for the ACLU of Missouri, puts it plainly: "There isn't going to be $30 million for a campaign that does not have a chance of winning."

Throughout this process, the Missouri coalition has been receiving advice and support from the Fairness Project, the national group behind a wave of successful ballot initiatives to expand Medicaid and raise the minimum wage. Recently, the group has begun throwing its weight behind abortion-rights measures, such as the successful Michigan amendment last year, which also allowed for a viability limit. "We're in a moment where abortion-rights advocates nationally and in every state are trying to figure out how we deepen our understanding of where the electorate is," says Fairness Project executive director Kelly Hall. Getting answers, she adds, requires "a deeper dive than just 'Do you support abortion rights? Do you oppose extreme bans?' Because there are a lot of nuances to both how policies can be crafted, and opposition messages."

The inclusion of a viability line in proposed amendments is putting advocates beyond Missouri in a difficult position as well. Take an abortion-rights measure in Ohio, which voters will decide on in November, and which allows for a viability ban. ACOG, the national medical organization, says the amendment "is not completely in line" with its "policy of support for access to abortion without restrictions." Yet members of the association's Ohio chapter requested permission to endorse the initiative anyway, and the ACOG board of directors voted to allow it. In a statement, the association says the directors made their decision "to provide relief" for physicians and patients for whom the amendment would restore access.

"No one in 'Big Repro'...none of them are coming out and saying, 'This is bullshit. Why are we enshrining this?'"

Other national abortion-rights groups say they are following the lead of state-level advocates when it comes to which measures to support. "It is not always possible to achieve our entire vision in one step, but we strive to enact policies that will do the most good for the most people along the way," says ACLU senior campaign strategist Carolyn Ehrlich. Standiford, of the Planned Parenthood Action Fund, says she knows that viability limits are "arbitrary." Yet she considers ballot initiatives that include them "supportable" in places where viability is already enshrined in state law.

As the compromises continue, some abortion-rights advocates are fed up. "'It's 'Big Repro' who has spent the last 50 years saying, ' Roe was the floor, Roe was not enough,'" says one abortion provider, who requested anonymity out of fear of losing connections in the movement. "Now that they have an opportunity to go beyond Roe, they're not. No one in 'Big Repro'-Planned Parenthood Federation of America, the Center for Reproductive Rights, the ACLU, NARAL Pro-Choice America, the National Abortion Federation-none of them are coming out and saying, 'This is bullshit. Why are we enshrining this?'"

Merritt stepped back from the Missouri coalition after a period of intense reflection. She says she "dusted out Loretta Ross' ' Reproductive Justice 101 '" and thought about what it meant to keep sitting at the ballot table as a Black woman widely respected in the movement. Ultimately, she decided: If the only proposal that could win was one that contained restrictions like parental consent and a viability line, it meant the time to try to pass an amendment wasn't right. Not when the concessions would be written into the state constitution. "The answer to not having a win for bodily autonomy is not restrictions," she concluded. "It has to be a reassessment of the timing of the ballot."

McNicholas, at Planned Parenthood of St. Louis, isn't ruling out supporting the amendment campaign going forward. Yet as she weighs the issues, she says she thinks often of the personal stories of vulnerable and marginalized patients she's used to advocate against restrictions in the past. "I oftentimes think of how easy it is to share those stories of pain and devastation when we're on the defense," she says. "We cannot be a movement that has spent decades sharing those tragic impacts, only to turn around and compromise on those folks quickly, when we have an opportunity to do something bold and proactive."

Over and over, pregnant people who qualify for exceptions under state bans have been unable to find doctors willing to provide them an abortion.

Robin Utz is one of the women whose story was deployed by advocates campaigning for abortion rights. After four years of trying to conceive, Utz finally became pregnant in Missouri in 2016, only to learn at 20 weeks and 6 days that her daughter had a fatal kidney disease that would prevent her lungs from developing. Knowing her daughter had no chance of survival, Utz got an abortion six days later, on the second-to-last possible day before Missouri's viability cutoff. Afterwards, she shared her story online and introduced herself to local abortion-rights organizations. She spoke at their fundraisers; lobbied for bills they supported; and served as treasurer on a failed 2019 campaign to block the trigger ban state officials would ultimately enact within minutes of the fall of Roe v. Wade.

It's possible that women like Utz, who know for sure their child won't survive birth, would still be able to access an abortion under the type of limit being considered by the Missouri ballot coalition. It all comes down to doctors, who would be legally tasked with determining if a pregnancy was viable-and deciding how much of a risk to take for patients whose cases may not be so clear-cut. Over and over in the last year, pregnant people who qualify for exceptions under state bans have been unable to find doctors willing to provide them an abortion. As a result, patients as young as 13 have had no choice but to carry their pregnancies to term.

Utz is conflicted over whether she would vote for one of the compromise amendments currently on the table in Missouri. On one hand, she doesn't want any abortion-rights initiative to fail. But she says she's lost faith in the local groups that helped her become an activist, taught her about reproductive justice, and provided a sense of community after her own later abortion. "A lot of people that helped me see how loud we could be, how grand of a vision we could have, are now the same people pushing forward these terrible, incomplete things," she says. "Some of those organizations are the ones pushing forward ballot initiative language now that cuts me out."
Top image: Mother Jones illustration; Saul Loeb/AFP/Getty (3); Angela Weiss/AFP/Getty

Looking for news you can trust?

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Close

Thank you for subscribing!

MOTHER JONES NEEDS YOUR HELP

Straight to the point: Donations have been concerningly slow for our hugely important First $500,000 fundraising campaign. We urgently need your help, and a lot of help, over the next few weeks so we can pay for the one-of-a-kind journalism you get from us.

Learn more in " Less Dreading, More Doing," where we lay out this wild moment and how we can keep charging hard for you. And please help if you can: $5, $50, or $500- every gift from every person truly matters right now.
Donate

MOTHER JONES NEEDS YOUR HELP

Straight to the point: Donations have been concerningly slow for our hugely important First $500,000 fundraising campaign. We urgently need your help, and a lot of help, over the next few weeks so we can pay for the one-of-a-kind journalism you get from us.

Learn more in " Less Dreading, More Doing," where we lay out this wild moment and how we can keep charging hard for you. And please help if you can: $5, $50, or $500- every gift from every person truly matters right now.
Donate

# data[].attributes.attachment_link.title
A debate over fetal viability is fracturing the abortion rights movement

# data[].attributes.attachment_link.description
It's "talked about as this very simple line in the sand, and that couldn't be further from the truth."

# data[].attributes.headline
Is ‘viability’ viable? Abortion, conceptual confusion and the law in England and Wales and the United States

# data[].attributes.subject
Is ‘viability’ viable? Abortion, conceptual confusion and the law in England and Wales and the United States

# data[].attributes.body
"I conclude that there is incoherence in the meaning of viability and argue that it is thus a conceptually illegitimate basis on which to ground abortion regulation. This is both because of the fluidity of the concept and because how it has been thus far understood in the law is unsupported by medical realities. Furthermore, it has the effect of heavily diluting pregnant people’s rights with overly moralistic limitations on access to healthcare."

# data[].attributes.attachment_link.readable_text
Abstract

I. INTRODUCTION

In this paper, I consider how viability features, is defined, and is utilized in the law in England and Wales and the USA and whether these conceptions of viability are legally coherent. The impact of viability as a tool in legal regulation that limits access has been well explored. It is often argued that viability should not be utilized as a legal metric to ground abortion rights. In this paper, I consider the parameters of viability as a legal concept, specifically how it has been both defined and quantified and its conceptual grounding. Most literature that criticizes the concept has not considered the mechanics of the concept in terms of how it is defined and instrumentalized. Since viability is so entrenched in the law, we should have a clear understanding of its meaning that can be consistently articulated and be able to justify its inclusion as a legal standard. I demonstrate that while viability is often described in a simple account of 'the ability of a fetus to survive after pregnancy', the concept has been deployed, understood, and defined in vastly different ways in the USA and England and Wales. I argue that for viability to be considered a coherent concept, it must have a rational and cogent basis that is consistent about what kind of life ex utero matters legally and can be consistently applied in different circumstances. I echo calls made by other scholars that it is inappropriate to ground regulation by reference to viability; however, I do so by considering by what logics the particular legal regimes identified recognize viability as a justifiable concept and standard of compromise in abortion law.

I compare the law in these two jurisdictions because, despite some economic and cultural similarities between them, they have different modern histories of abortion law, abortion politics, and systems of provision. In the USA, abortion provision is in the hands of State legislatures that are subject to some restrictions by the Supreme Court, which has interpreted the Constitution, most notably in Roe v. Wade and Planned Parenthood v. Casey, to recognize that abortion is encompassed in the right to privacy. In England and Wales, no right to abortion is recognized, but Parliament has legislated to ensure medicalized access under certain circumstances. Viability features in both these frameworks to differing degrees. The US Supreme Court has been explicit that the right to abortion is limited by foetal viability. In England and Wales, the statutory framework has, both directly and indirectly, the effect of ensuring access becomes more limited after foetal viability. These jurisdictions are therefore useful points of comparison for examining the coherence of viability because it is featured, defined, and quantified differently in both.

First, I demonstrate the extent to which viability determines the legality, or provision, of abortion in both jurisdictions. Second, I test the concept of viability that is contained in the law of each jurisdiction by considering its application to two specific cases: the development of artificial womb technology and anencephaly. Artificial womb technology is of interest because such a development might challenge the viability timeline by enabling the support of fetuses ex utero much earlier in gestation. Fetuses with conditions incompatible with life such as anencephaly are of interest because they allow investigation of the possibility that viability is a rebuttable presumption later in gestation. I demonstrate that there are internal inconsistencies in the application of the law in these jurisdictions in how the law is applied to these two case studies. There are, therefore, problems in how viability has been legally conceptualized and in implementing viability as a feature of the law, resulting in inconsistency in the legal recognition afforded to fetuses and in determining what kind of life matters ex utero. Finally, I argue that viability is not a conceptually legitimate basis for abortion regulation.

II. THE ORIGINS OF VIABILITY

Before delving into the particularities of how viability is both featured and articulated in the law in the USA and England and Wales, it is necessary to first explore the conceptual foundations of viability as a concept.

III. VIABILITY IN THE LAW

This section outlines how abortion provision is dependent upon determinations about viability in England and Wales and the USA and makes some preliminary comparative observations.

A. England and Wales

Under S.58 and 59 of the Offences against the Persons Act 1861, it is a crime for any person (including the pregnant person) to unlawfully procure a miscarriage. This crime can be committed at any point in gestation, irrespective of any perceived (in)capacities of the fetus to survive ex utero. The Infant Life (Preservation) Act 1929 created the offence of child destruction, committed when a person wilfully acts to intentionally destroy a fetus capable of being born alive. The Abortion Act 1967 (AA 1967) provides medical practitioners with a defence to these criminal offences in a proscriptive list of circumstances, the first of which is termed the 'social ground for abortion' and stipulates that termination is lawful if two doctors agree that 'the pregnancy has not exceeded its 24 weeks and continuing the pregnancy would involve risk (greater than if the pregnancy were terminated) of injury to the physical or mental health of the pregnant woman or a existing children of her family'. This does not provide pregnant persons with a right to pregnancy termination, because the AA 1967 is still framed in medical terms; termination can be provided before 24 weeks provided that the risk of continuing the pregnancy is greater than the risks of termination. However, this provision is so broad it renders 'every pregnancy legally terminable within the first 24 weeks'. This defence in the AA 1967 has installed an implicit viability threshold. There are defences available for doctors performing abortion after 24 weeks; however, they are harder to establish and require 'clear proof of the more serious danger specified'. These grounds consist only of where the termination is necessary to prevent 'grave permanent injury' to the physical or mental health of the pregnant woman, where pregnancy is a greater risk to the woman's life than termination, or where there is a substantial risk that the fetus has serious abnormalities. Because the defences available to a doctor to avoid criminal sanction after 24 weeks are narrower and framed in terms of greater severity, the AA 1967 appears to grant a limited 'right to be gestated' to fetuses from 24 weeks. This is, of course, subordinate to pregnant people's life and health, but notably the law distinguishes between the justifications for abortion before and after this point.

There is a more explicit reference to viability in the offence of child destruction criminalizing the abortion of fetuses capable of being born alive. The Infant Life (Preservation) Act 1929 (ILPA 1929) provides limited guidance on the meaning of capable of being born alive, other than to stipulate that reaching 28 weeks' gestation was prima facie proof. This minimum threshold was subsequently lowered to 24 weeks. Section 5 of the AA 1967 was amended in 1990 to specify that this offence is not committed when a medical practitioner conducts abortion in the circumstances outlined by the Abortion Act. It remains unclear whether the Abortion Act offers the more stringent protection to fetuses only at 24 weeks and beyond, or whether fetuses before 24 weeks are also encompassed if proof can be if they are capable of being born alive. It is possible to view the 24-week threshold as either fixing legal viability to this point (regardless of whether this matches medical reality/opinion) or as a guideline marking the point from which viability is legally assumed, but not necessarily precluding the recognition of younger fetuses as viable.

The language used in the AA 1967 and ILPA 1929 is significant. There were ample opportunities for Parliament when drafting the AA 1967, or amending it in 1990, to specify that the AA 1967 24-week threshold was superseding a 'capable of being born alive' standard. It plausible, therefore, that capable of being born alive was intended to afford protection to some fetuses before 24 weeks; preventing termination unless the grounds under the AA 1967 were met. Judges have interpreted 'capable of being born alive' in this way. In C v. S, the Court of Appeal judgment afforded considerable time to considering medical evidence to ascertain whether an 18-week fetus was capable of being born alive under the ILPA 1929. The legislative threshold is thus 'only a presumption which relieves the prosecution of the burden of proving viability' after that point and 'does not prevent proof that a particular fetus is viable at an earlier stage in development'. C v. S was decided before the 1990 amendments to the AA 1967 but demonstrates that there is potential for the viability timeline to be shifted, increasing the scope for liability if there is not strict adherence to the defences in the AA 1967.

What is encompassed in the capacity to be born alive? In C v. S, Donaldson MR stipulated that a fetus was capable of being born alive only if it could breathe after birth, with or without a ventilator. In Rance, Brooke J suggested a fetus would be viable only when capable of 'living through its own lungs alone, without deriving any of its living or power of living through any connection with its mother'. English law clearly focuses on the capacity to breathe to establish viability. In C v. S, Mr C claimed that capable of being born alive was a more restrictive legal concept than viability; it need only be established that the fetus could survive no more than birth. It was held that being born at 18 weeks would result in little hope of survival, because there would be no capacity to breathe. This did not resolve the issue of whether the capacity to breathe only for a short time after birth would be sufficient, or whether the capacity would have to be more substantial (such as longer term use of the lungs). Intuitively, capable of being born alive is intended to convey a capacity to breathe for some reasonable time after birth. The wording of the ILPA 1929 implies that the offence would be committed when a fetus is delivered alive and breathes but does not live long after that. The presumption in the AA 1967 that a fetus is capable of being born alive from 24 weeks gestation demonstrates Parliament's intention to include fetuses that once born may not survive in the longer term, given the usual prognosis of neonates born at this point in gestation, which would have been even worse 20 years ago when the threshold was made law. Viability in English law means capable of being born alive and surviving for a time by breathing, rather than being born alive and surviving in the longer term.

B. The USA

In Roe v. Wade, the Supreme Court recognized that the constitutional right to privacy encompasses the right to terminate a pregnancy, but this right could be qualified by the state's interest in potential life at fetal viability. The right to abortion continues until the point a fetus becomes 'potentially able to live outside the mother's womb, albeit with artificial aid'. Blackmun J advanced a 'trimester framework' to separate different developmental phases in gestation and illustrate the differing levels of state interference that could be lawfully justified in each. Roe holds that 'with respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability... if the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother'. This point was identified as the third trimester of pregnancy. Nineteen years later in Casey, the Supreme Court, while abandoning Blackmun's trimester framework, reaffirmed 'that viability marks the earliest point at which the state's interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions' emphasizing that 'the attainment of viability may continue to serve as the critical fact...'. The Court replaced the trimester framework with the 'undue burden' test, holding that a law is unconstitutional if its 'purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability'.

Pregnant people have the right to terminate pregnancy, as part of the constitutional right to privacy, until foetal viability. Individual states must refrain from passing laws that unduly interfere with access to abortion until viability. After viability, States can pass whatever restrictions on abortion they see fit, expect that a pregnant person must still be able to access abortion if their pregnancy poses a serious risk to their health or life. This clear delineation by viability begs the question about its definition. In Casey, viability was defined as 'the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection'. It was observed that the precise point of viability is dependent on medical technologies, and medical developments would come to re-determine the concept. In Roe, fetal viability was estimated at 28 weeks, though it was acknowledged that viability could occur earlier. Casey found that States could restrict abortion access from 23 to 24 weeks 'or some moment even slightly earlier in a pregnancy'. In Planned Parenthood v. Danforth, the Supreme Court considered the constitutionality of a Missouri abortion statute, including its definition of viability as 'that state of fetal development when life of the unborn child may be continued indefinitely outside the womb by natural or artificial life supportive systems'. This definition was found to be consistent with Roe because when a fetus is viable, it would presumably be capable of 'meaningful life outside the mother's womb' flexibly understood. The Supreme Court resisted the claim that viability was a concept that could be fixed to a particular point in gestation because 'viability was a matter of medical judgment, skill, and technical ability and [in Roe] we preserved the flexibility of the term.... It is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period'. The viability threshold is thus seemingly dependent on technology, but ultimately on medical evidence and opinion with no discrete definition concerning the kind of independent existence of which a fetus must be capable. Viability is strongly tied to the notion of foetal independence from a pregnant person. Swyers warns that 'assuming that medical science continues with the same momentum seen over the past two decades of advances in... postnatal care, a woman's right to terminate her pregnancy under the current viability standard may soon disappear'.

The Supreme Court's refusal to quantify viability means that States have been left to define viability as they see fit, which has resulted in a multitude of approaches. Most State laws have ultimately followed the Supreme Court's reasoning and maintained that viability is a medical concept, deferring judgment to medical professionals. Despite this, most States place limitations on that medical judgment by implementing some quantification of viability, either by reference to gestational age (GA) or the capacities of a fetus. Regulations at State level largely fit into three categories: those that define viability as a matter of medical judgment; those that define viability by referencing the capacities or features of the fetus; and those that define viability as a fixed point in gestation.

Some States define viability only by referencing the capacities or features of the fetus. Wyoming defines viability as 'that stage of human development when the embryo or fetus is able to live by natural or life-supportive systems outside the womb of the mother according to appropriate medical judgment.' Utah defines viability as the point when an 'unborn child' is potentially able to live outside the womb as determined by a doctor to a reasonable degree of medical certainty. Among States that provide a definition of viability, the vast majority explicitly include those fetuses that can only survive ex utero with artificial support. As recently as 2006, Kansas defined viability as the capacity to survive after birth, 'without the use of extraordinary measures,' placing stricter limits on the kind of ex utero existence considered sufficient. The law in Kansas, however, now defines 'viable' as the stage of fetal development when 'it is in the physician's judgment according to accepted obstetrical or neonatal standards of care and practice applied by physicians in the same or similar circumstances that there is a reasonable probability that the life of the child can be continued indefinitely outside the mother's womb with natural or artificial life-supportive measures'.

IV. PRELIMINARY OBSERVATIONS

There is some legal recognition that there is a state interest in potential life in both the USA and England and Wales, which has resulted in some legislative protection for unborn fetuses. The law of each jurisdiction has also recognized that this state interest becomes 'compelling' later in pregnancy, so that restrictions can justifiably be enacted on abortion. There is incongruity, however, in ascertaining what viability means and the point at which viability occurs. This inconsistency demonstrates that different kinds of life ex utero are meaningful enough to command 'state interest' in each jurisdiction.

First, exactly how a viability threshold has been established in law is different in each jurisdiction. While the term viability is used explicitly in the US legal framework established in Roe v. Wade, it does not feature in the criminal law in England and Wales at all. Despite this, it is clear that abortion regulation constructs a gestational time limit that intersects with a fixed point in gestation that is often cited as the point of fetal viability, and the offence of child destruction affords some protections to fetuses who are 'capable of being born alive;' which adopts the similar logics to the concept of viability in being concerned with the fetus's potential.

Moreover, there is no evidence that a fetus could ever survive ex utero at some of the points that legislatures have identified (less than 22 weeks) even with intensive care, because the lungs would not yet be formed. Survival with the aid of intensive care is dependent on a neonate having sufficiently formed lungs to tolerate artificial ventilation. The way these thresholds (at a specific GA) have been constructed suggests that viability is concerned with a chance of survival, rather than the likelihood of survival or meaningful life after birth. Intuitively, however, it seems that a 'state interest' in an entity would be more defensible if there were some longevity to life.

In the following sections, I explore the coherency of viability in the law, by examining what kind of life ex utero the legal frameworks of England and Wales and the USA consider valuable. This turns on whether viability is constructed as a rebuttable presumption or an evidential rule. In both jurisdictions, an isolated point in gestation is identified, formally or informally, as the point a fetus is (assumed) viable. Does this preclude fetuses younger than this point from being recognized as viable? Does the law allow for the recognition that an individual fetus is not viable later in gestation? A consistent and coherent account of viability, that is carefully quantified, is not provided in English or US jurisprudence.

V. VIABILITY EARLIER IN GESTATION

In England and Wales, the law has constructed viability as a rebuttable presumption, because a fetus before the 24-week threshold is not precluded from being determined 'viable'. The C v. S judgment demonstrates the willingness of English judges to examine evidence regarding the viability of fetuses before the 24-week threshold. However, the standard remains 'capable of being born alive', suggesting that the fetus must be capable of displaying some legally recognizable life signs after being born. A newborn capable of only surviving with the aid of intensive care is considered viable in English law. There has been limited further clarification about what likely duration of life after birth is sufficient to establish that a fetus is viable. Viability is even less fixed in US law since the Supreme Court has refused to fix a point in gestation from which a fetus is presumed viable. Individual States have thus been free to define viability and the point from which they will assume that fetuses are viable. Some states set a low threshold of presumed viability.

Anti-choice campaigns often attempt to validate arguments about reducing abortion time limits by referencing advances in medical technology and their impact on the viability timeline. The argument is that if a fetus can survive earlier in gestation ex utero, then abortion legislation should reflect that medical possibility. Prematurity remains the leading cause of death for preterms born at or before 26 weeks' gestation, because before this point, the infant risks being too functionally immature to survive. The likelihood of survival, and without serious complications resulting from care complications or developmental limitation, increases with GA. There is considerable variation in studies investigating survival rates for neonates born preterm and extremely premature that is usually, as the British Association of Perinatal Medicine note, because results are influenced greatly by 'cohort selection, place of birth and variation in the provision of active and obstetric and neonatal management'. However, a recent systematic review notes that chance of survival, among those who receive intensive treatment, increases from 24.1 per cent at 22 weeks to 90 per cent at 27 weeks. Only 23 per cent of surviving children delivered at 22 weeks are without an impairment; this rises to 39.3 per cent of those born at 24 weeks and to 70.8 per cent at 27 weeks. In the medical literature, there is generally some consensus that a realistic threshold based on some chance of survival (as explained) can be placed at 24 weeks. However, notable exceptions of preterms surviving exceptionally young and the wishes of parents to attempt resuscitation on preterm neonates serve to reinforce the notion of a viability threshold accounting for outside possibilities. The Nuffield Council of Bioethics guidelines regarding resuscitation decisions specifies that resuscitation attempts on newborns below 22 weeks should not be attempted outside of recognized clinical trials. This raises questions about the kind of life the law is recognizing ex utero. Is some possibility of survival ex utero sufficient, or some possibility of a healthy life with longer-term survival prospects? Or even a reasonable likelihood of survival with good prospects for a healthy life? In both jurisdictions, law and medical guidelines do not set their sights as high as a reasonable likelihood of survival and/or long-term prospects.

A. Artificial wombs: artificial amnion and placenta technology (AAPT)

AAPT is conceptually distinct from other forms of preterm care because it is continuing the process of creating, rather than rescuing, developing human entities. Thus, the subject of an artificial womb (AAPT), termed the 'gestateling', is a unique entity because it is neither a fetus nor a neonate. A fetus is a developing human entity undergoing the process of gestation dependent upon a pregnant person. A neonate, while developing still, is no longer undergoing a process of creation and must be capable of partially self-sustaining in the external environment. A gestateling is undergoing the process of gestation and is not ex utero in a meaningful sense, but it is not dependent upon a pregnant person. Viability is generally thought of as the capacity to exist ex utero (conventionally the uterus being a part of a pregnant person). There is the potential to describe some fetuses as 'viable' in the sense that they can be sustained outside the body of a pregnant person, but they are not in any way capable of an independent post-gestation existence. Should we consider these fetuses 'viable?' Or not, because they are capable only of being transferred to an 'artificial womb'?

Insofar as any legal concept of viability has any utility, and it would distinguish between those fetuses that are capable of independent existence after gestation and those that are not. A fetus becomes 'viable' only when it can survive ex-gestation irrespective of where that gestation is taking place. A fetus should only be described as 'viable' only when able to take on some of the burden of sustaining themselves independently. Emergence from gestation involves the developing human entity undergoing meaningful biological adaptations enabling self-sufficiency, interaction with and survival in the ex utero environment (even if they were dependent on rescue technologies in neonatal intensive care). There are substantive reasons to believe that a fetus gestating in a pregnant person that would only be able to continue any biological life ex utero if the process of gestation was continued is different in nature to the fetus capable of making the biological state changes for independent living. If the purpose of the viability timeline is to identify potential life that the state has a meaningful interest in preserving, the state has a greater interest in the preservation of a life able to survive ex utero rather than an entity that can only 'continue to be gestated ex utero '. The entity that can make a meaningful adaptation to the external environment is a life that has the potential of being realized, rather than having potential only in a removed sense.

While English law does, to some extent, entrench a moveable concept of viability, it makes explicit reference to being capable of 'being born alive' rather than just existing ex utero. The gestateling (subject of AAPT) would likely not be capable of satisfying the legal definition of 'born alive' in English law because it does not breathe or perform any exertive activities that demonstrate any independence or self-sufficiency. Because it remains in the process of gestation, it is not 'born alive'. Thus, fetuses should only be considered viable when capable of maintaining some kind of (supported) independent existence following the biological state changes encompassed in birth. In the USA, scholars frequently explain that the Supreme Court quantified viability as a standard of only 'independent existence' from a pregnant person. Horn, in her comparative account of abortion and the law in England and Wales, the USA, and Canada after the development of artificial womb technology, stresses that the viability timeline in US law does mean that the development of the technology could result in significant restrictions on abortion access. The explicit references to medical advancements and the likelihood that viability will shift with future medical developments in Roe and Casey are highlighted as support for the suggestion that a fetus would be considered viable for legal purposes earlier and earlier in gestation.

English and US law thus have different approaches: English law is concerned with fetuses capable of being born and maintaining some independent life function, whereas in US law, the standard is stipulated in a way that sets the threshold lower; at just independence from a pregnant person. English law is concerned with the capacities of the developing human entity, whereas US law is not. Some US States have passed legislation conceptually similar to the English approach-making specific reference to the capacities of the fetus-even though they are not required to set such specific standards. The reasons for the difference can be elucidated in the origins of the law in each jurisdiction. In England and Wales, the focus on the 'capacity to be born alive' standard originates from the 'born alive' rule in criminal law. A human entity only has legal personality and can therefore be the victim of homicide, if it is born alive. Such a rule has been long established in English law; in the 17th century, Sir Edward Coke wrote that

if a woman be quick with childe and by potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead childe, this is great misprison, and no murder: but if the childe be born alive, and dieth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.

If viability is a concept intended to meaningfully convey some notion of the potentiality of life, English law currently adopts the more coherent account of viability as applied earlier in gestation. There is a meaningful developmental difference between a fetus no longer necessarily in need of being created because it could survive after gestation with conventional care and a fetus that cannot be sustained outside of gestation. Though questionable, if the state has an interest in potential life, it seems intuitive that this interest would be directed only toward those fetuses that could live in the external environment rather than those human entities still dependent on being created (whether in utero or an 'artificial womb'). The approach of the US Supreme Court is vague and encompassing of fetuses incapable of making the necessary biological state changes to demonstrate a completed birth.

VI. VIABILITY LATER IN GESTATION

A. Anencephaly

In English law, there is provision for the termination of an anencephalic fetus even after 24 weeks (the implicit viability threshold). The Abortion Act 1967 provides a defence to a doctor performing a later-term abortion in the case of 'a substantial risk that if the child were born... it would be seriously handicapped'. There has been little clarification of the necessary severity of the handicap in these circumstances; however, it is clear that given the severity of anencephaly that abortion would be lawful here. This does not answer the question as to whether such a fetus would be considered 'viable' and whether the prima facie assumption of viability from 24 weeks can be rebutted. An English Court has not addressed this issue, because the AA 1967 does allow termination after 24 weeks in all the circumstances it is usually sought after on the grounds that the foetus is non-viable (without needing to consider viability). The AA 1967 is clear that even after a fetus is prima facie viable, the pregnant person's interests in health and life remain paramount, allowing them to terminate their pregnancy if necessary. The handicap provision does not mandate that the fetus must have an abnormality that would be life-limiting after gestation. It is therefore unknown whether there is any requirement in English law that to be capable of being born alive, the fetus need be capable of longer-term survival. English legislation was likely intended to afford legal protection to any human entity that survived birth, irrespective of prospects for longer term survival. Viability is not a coherent concept if it does not proscribe more than surviving birth. C v. S established that a prima facie assumption of viability at a particular point in gestation is intended to shift the burden of proof in establishing viability away from a prosecutor. If the Court is willing to accept that a party can claim that viability is evident earlier in gestation if compelling evidence is presented, equally then should not the 'prima facie proof' of viability be challengeable with evidence? An anencephalic fetus, regardless of GA, would patently never be capable of surviving for a meaningful amount of time after birth. Most fetuses with anencephaly are absent a cerebral cortex and thus will never be capable of consciousness, and only capable of sustaining very limited signs of life for a short period. While such a fetus might be considered biologically alive on delivery because of these basic signs of life, it might also satisfy the legal definition of death in English law, that is brain death. Thus, describing it as 'capable of being born alive' seems counter-intuitive. If a fetus were never likely to have an independent life or consciousness-why should it be afforded comparable protection to fetuses with potentiality? Arguably, the AA 1967 is intended to ensure exactly this by providing explicit grounds for the termination of those fetuses unlikely to survive as a result of a severe congenital impairment.

The US Supreme Court is clear that the viability threshold intends to protect the 'potential for independent life'. Little further clarification has been offered about what kind of life meets this standard. Thus, it remains unclear whether viability later in gestation is a rebuttable presumption in US law. Some States have chosen to be more specific in legislation about what kind of ex utero existence is sufficient to establish viability. While most refer to artificial life support to denote fetuses that can survive with the assistance of intensive care as potentially viable, few qualify that further with reference to the duration of life after birth. In Florida, viability means 'the stage of fetal development when the life of the fetus is sustainable outside the womb through standard medical measures'. In Maine, viability is defined as 'the state of fetal development when the life of the fetus may be continued indefinitely outside the womb by natural or artificial life supportive means'. Maryland defines viability as a 'reasonable likelihood of the fetus's sustained survival outside the womb'. The American College of Obstetricians and Gynecologists echo this approach, advising that abortions performed later in pregnancy are usually those involving risk to the pregnant woman or foetal 'anomalies incompatible with life, such as anencephaly...'. In some States, a fetus would be described as viable if there were only the possibility of it surviving birth and no longer, for example States that consider a fetus viable from a specific point in gestation at which the data would not predict a reasonable likelihood of either long-term survival or even any survival after birth. The recognition afforded to these fetuses with conditions incompatible with life is not only incoherent but also actively harmful to pregnant people carrying an anencephalic pregnancy. A recent anonymous testimonial by an American physician describes the agony of attempting to support patients carrying pregnancies with no chance it results in a child while being legally, professionally, and politically restricted from offering the option of ending the pregnancy. The legality of an abortion based on foetal abnormality is dependent upon the law of individual States.

It is useful here to highlight that there is no moral continuity between an entity that has actually been delivered alive and an entity that could be delivered alive. The rigidity of homicide law in this area is potentially necessary as a way of ensuring that there is no discrimination between human entities. Greasley explains that 'interpersonal variations in person-relevant capacities should not affect the equal moral status of individuals within the range... [this is] morally essential for maintaining the kind of relations between persons that we deem valuable'. As such, a human entity delivered alive is afforded the protection of the law of homicide because they have been born alive, even if they cannot survive in the longer term. It is clear, however, that a fetus who has the capacity to be born alive (whether that survival would be short- or long-term) need not be treated with a comparable level of respect. The reality is that capacity to be born alive is not the same as having been born alive.

VII. THE CONCEPTUAL ILLEGITIMACY OF VIABILITY THRESHOLDS

Horn argues that 'Canadian law does not set a viability timeline for abortion demonstrates that legal "viability" is not a quality naturally vested in some fetuses, but a fictive construct designed to act as a limitation on abortion'. She makes this argument as a basis for decriminalization as a model for protecting abortion provision with the advent of artificial womb technology in the UK (where the AA 1967 applies) and the USA like, as she demonstrates, the right to abortion would be in Canadian law even with such technology available. The traditional viability analysis, evident in the law in English and US law, assumes that foetal viability is a legitimate foundation for regulation. Horn concludes that a framework 'based on fetal viability regardless of how it is defined fails to sufficiently account for relationality and care for the pregnant person' by decentralizing the pregnant person. In this paper, I sought to add meaningfully to her call-first, by demonstrating the doctrinal incoherence in the concept of viability as it both currently quantified and deployed in English and US law. This investigation was necessary to illustrate how the 'self-evident logic' that is sometimes claimed of the viability threshold does not stand up, especially if we examine how viability is defined and utilized in the law. Second, my work adds to this call by demonstrating the inadequacy of viability in regulating abortion provision in contexts beyond that of AAPT; most notably, by comparing how the concept applies to fetuses with conditions incompatible with life. In the following section, I make the case that using a viability threshold to regulate abortion provision is not an effective standard of compromise in the law, nor conceptually legitimate.

The entrenched reference to viability in the law assumes that it is necessary to strike a balance between a state's interest in potential life and a woman's right to bodily autonomy and equality. Frequently, the viability threshold is conceptualized as a 'compromise' between these two interests, but it performs no such function. Despite the regulation of abortion by criminal statute in England and Wales and the USA, it is notable that the state interest in abortion policy has not been elaborated upon in any of these jurisdictions. Dalzell explains that in Roe and Casey, there is no exploration of the 'state interest in potential life' by quantifying or defining this interest, effectively 'stripping the state from the duty of proving its interest'. The interest in potential life has been interpreted broadly in the USA, as always present but 'compelling' only after viability in Roe, and in England and Wales, there has been little exploration of the justification for state rationale in legislating to make abortion harder to access after a viability threshold. Abortion legislation was introduced in England and Wales 'to clarify the law for doctors and to stem the misery and injury from unhygienic, risky illegal abortions'. In the 1990, Commons debate regarding the time limit for 'social abortion' discussion centered around preventing later-term abortion, and a lack of public support for abortion 'on demand' rather than explaining why abortion was a public, rather than a private, matter. What is the justification for abortion being anything other than a person's private choice? All sorts of 'moral matters' that were at one time thought the business of the state have since been rightfully recognized as private choices. The onus in thinking about abortion must be flipped; claims that the state has an interest in preventing abortions must be fully justified, rather than it being women and pregnant people who are routinely forced to defend their privacy, autonomy, and equality.

If the justification for state interest is based on preserving life, or potential life, in any real sense, the law would only provide legal protection for a developing human entity from the point of birth. This is the point at which there is a human being existing independently of another person demonstrating any potentiality for independent life. This is just not true in any way at the point at which an unborn entity is dependent upon a pregnant person. There is compelling evidence to suggest that only fetuses near to or at the end of the gestational period can be described as 'naturally viable'. The gestational period is around 36 weeks, and a fetus is only likely to have sufficiently developed lungs, allowing for breathing ex utero without assistance, at around 30 weeks. There might be an attempt to argue that the State has an interest in life in a symbolic sense-in setting a standard of protecting life that might come to fruition as a way of recognizing the value of life. This cannot be the case, however, as a State that professed such a position would surely pass rules limiting the use of birth control, or requiring that 'spare' embryos left over from IVF be implanted, as these examples are instances where there is interference with 'life' in a symbolic sense.

Regulating abortion by reference to a viability threshold is not a compromise because it fails to recognize the importance of the right to meaningful equality for women, penalizes pregnant people likely to submit for abortion later because of circumstances that have already marginalized them, and labels women and pregnant people as 'in need of regulation' to prevent them making 'bad' choices. Cook explains that

criminal abortion, like crime generally, is a legal and social construct ... the criminal essence of abortion then implicates the social construction of those who actually and potentially seek abortion and those who provide and assist in its provision. By framing abortion as a crime societies ascribe deviance to those seeking and providing it....

There are also pragmatic problems with using a viability threshold to regulate because it is innately arbitrary. Viability is wholly dependent on geography and resources. Moreover, it is moveable and uncertain. The standard of viability in medicine is based on the 'human interpretation of statistical probabilities' applied to fetuses as a class. There is disagreement about the likelihood of survival at different points in the gestational period. There is, for example, significant dissenting medical opinion about the appropriate point to rule out 'newborn rescue' after birth. There is also variance between individual fetuses at the same point in the gestational period. The US Supreme Court, in both Casey and Roe, explained that legislatures and Courts are entitled to draw arbitrary lines so long as they produce fair outcomes. Limiting abortion access based on viability always perpetuates unfairness, because it forces clinicians to engage with the concept of viability and, as Horn explains, thus think more about GA and the fetus than the pregnant person and their needs. Thus, again the focus on viability is not an 'effective compromise' between abortion rights and state interest in fetal life. It might be, however, argued that such considerations are relevant from the perspective of the pregnant persons' health because there are material risks associated with intervention later in gestation. Erdman demonstrates, however, that abortion is

often targeted for excessive regulation due to falsehoods about its inherent risks or dangerousness, [which is simply] a function of abortion stigma. The over-regulation of abortion throughout pregnancy on grounds of medical need or safety is another instance of boundary crossing, where moral and material hazards merge.

Furthermore, because viability is innately variable, it has been utilized by the anti-choice lobby and US State legislatures to justify restrictive definitions only loosely related to the capacity to be born alive. 'Foetal pain' has been related to viability in attempts to embed further restrictions in federal law. It is hard to see why the state has an interest in a fetus just because it has a primitive ability to feel pain (rather than the complex emotions associated with pain only experienced when one has the ability to subjectively interpret experiences such that pain becomes suffering). Or, why the state has an interest in a fetus that can be gestated ex utero, or even survive ex utero, when this entity is not a fully formed human being and, at the time of making these assertions of interest, is located inside a person. The viability timeline is primarily useful for aiding doctors and parent(s) in making decisions about the intensive care that should be provided to preterm neonates based on their functional capacities to survive in the external environment. This is an entirely different situation from people making decisions about pregnancy termination-so why should the two influence each other? The viability threshold assumes that legislation is necessary to prevent a surge in late-term abortions when this is unlikely. The data in countries where abortion law makes no reference to a viability threshold suggest, however, that there has been no quantum leap in abortion (or late-term abortion) provision in the absence of law. Pregnant people seeking abortion, for a variety of reasons, tend to access treatment as early as possible. Thus, without explaining what the state interest is in the viability threshold, it becomes easy to presume that it is intended to do nothing other than control both literally and symbolically the female body, women and pregnant people's choices.

VIII. CONCLUSION

Viability is an incoherent legal concept as it is currently featured in US law and in the legal framework in England and Wales. Viability is frequently ill-defined and presumed from a point in gestation before the fetus has a reasonable chance of survival, thus undermining the (limited) logic behind the use of viability in determining the protection afforded to unborn entities. Furthermore, viability appears to be a rebuttable presumption based on the capacities of a fetus and the technology that might be available to support it in one direction (earlier in gestation), but not in the other (later in gestation) even when the fetus is completely non-viable. I demonstrated that there is, therefore, little clarity or consistency in determining what kind of life extra uterum matters using the examples of AAPT ('artificial womb' technology) and unborn human entities with life-limiting conditions. There remain significant ambiguities in the law in England and Wales and the USA because of a failure to quantify what kind of extra uterum existence is meaningful. In this paper, following other feminist scholars, I argued that viability was a conceptually illegitimate basis for abortion regulation.

CONFLICT OF INTEREST STATEMENT

None to declare.

FUNDING

I am the recipient of a Wellcome Trust Doctoral Studentship in Society and Ethics (grant reference 208245/Z/17/Z).

ACKNOWLEDGMENTS

I am grateful to Professor Bernard Dickens at the Faculty of Law at the University of Toronto for hosting me in Toronto to undertake this research and for his helpful comments on earlier drafts of this work. I am also thankful to the Wellcome Trust for funding my research and to the University of Manchester Faculty of Humanities for awarding additional funding for this visit. I would also like to thank Dr Victoria Hooton, Dunja Begović, Anna Nelson, and the two anonymous reviewers and editors at the Journal of Law and Biosciences for their comments on earlier drafts.

Author notes

# data[].attributes.attachment_link.title
Is 'viability' viable? Abortion, conceptual confusion and the law in England and Wales and the United States

# data[].attributes.attachment_link.description
Abstract. In this paper, I explore how viability, meaning the ability of the fetus to survive post-delivery, features in the law regulating abortion provis

# data[].attributes.headline
Theorizing Time in Abortion Law and Human Rights

# data[].attributes.subject
Theorizing Time in Abortion Law and Human Rights

# data[].attributes.attachment_link.title
Theorizing Time in Abortion Law and Human Rights

# data[].attributes.attachment_link.description
Joanna N. Erdman Abstract The legal regulation of abortion by gestational age, or length of pregnancy, is a relatively undertheorized dimension of abortion and human rights. Yet struggles over time…

# data[].attributes.headline
PerryUndem Tracking Poll: Understanding Abortion Attitudes in a Post-Dobbs World

# data[].attributes.subject
PerryUndem Tracking Poll: Understanding Abortion Attitudes in a Post-Dobbs World

# data[].attributes.body
It’s important we get these questions right. To us, one of the most interesting potential shifts post-Dobbs is not wanting the government to restrict abortion, even later in pregnancy. But it’s harder to understand this shift if we’re not measuring the baseline in a relevant way.

# data[].attributes.headline
KFF Health Tracking Poll March 2024: Abortion in the 2024 Election and Beyond

# data[].attributes.subject
KFF Health Tracking Poll March 2024: Abortion in the 2024 Election and Beyond

# data[].attributes.body
prior to the 2022 Dobbs decision, a larger share of pro-life voters than pro-choice voters said abortion was important to their vote.

Yet, post Dobbs, there seems to be a new generation of abortion voters. These voters are largely made up of those who want abortion to be “legal in all cases.” They also are disproportionately made up of Black voters, Democratic voters, women voters, and the youngest voting bloc – voters ages 18 to 29.

# data[].attributes.attachment_link.title
KFF Health Tracking Poll March 2024: Abortion in the 2024 Election and Beyond | KFF

# data[].attributes.attachment_link.description
This poll finds 1 in 8 voters say abortion is the most important issue to their vote. They are younger, lean Democratic, and generally want abortion to be legal in all or most cases. The poll also gauges the public’s views on abortion-related policies, including a national 16-week abortion ban and allowing abortion for pregnancy-related emergencies.

# data[].attributes.headline
538: Dobbs Turned Abortion Into A Huge Liability For Republicans, Support for abortion rights is higher than it's been in decades.

# data[].attributes.subject
538: Dobbs Turned Abortion Into A Huge Liability For Republicans, Support for abortion rights is higher than it's been in decades.

# data[].attributes.body
One of the most surprising post-Dobbs trends is the speed with which some Americans have embraced the view that abortion should be legal with no restrictions at all times, including the late second trimester and early third trimester.

# data[].attributes.attachment_link.title
Dobbs Turned Abortion Into A Huge Liability For Republicans

# data[].attributes.attachment_link.description
When Theresa M. started attending a support group for breast cancer survivors, she didn’t expect political issues like abortion to be a part of the conversation…

# data[].attributes.headline
Messaging Recommendations—Beyond Abortion: How Abortion Bans Criminalize Pregnancy

# data[].attributes.subject
Messaging Recommendations—Beyond Abortion: How Abortion Bans Criminalize Pregnancy

# data[].attributes.headline
Fact Sheet: Banning Abortion at Potential "Viability" is Not Good Policy

# data[].attributes.subject
Fact Sheet: Banning Abortion at Potential "Viability" is Not Good Policy

# data[].attributes.headline
Changes in Availability of Later Abortion Care Before and After Dobbs v. Jackson Women's Health Organization

# data[].attributes.subject
Changes in Availability of Later Abortion Care Before and After Dobbs v. Jackson Women's Health Organization

# data[].attributes.body
There have been substantial reductions in the number and distribution of facilities offering procedural abortion since the Dobbs decision, with critical decreases in the availability of later abortion services.

# data[].attributes.attachment_link.title
Changes in Availability of Later Abortion Care Before and... : Obstetrics & Gynecology

# data[].attributes.attachment_link.description
Advancing New Standards in Reproductive Health Abortion Facility Database, a national database of all publicly advertising abortion facilities, to document trends in service availability from 2021 to 2023. We calculated summary statistics to describe facility gestational limits for procedural abortion for the United States and by state, subregion, and region, and we examined the number and proportion of facilities that offer procedural abortion in the second or third trimester of pregnancy. RESULTS: From 2021 to 2023, the total number of publicly advertising facilities providing procedural abortion decreased 11.0%, from 473 to 421. Overall, one-quarter of facilities (n=115) that had been providing procedural abortion in 2021 ceased providing services, and an additional 99 decreased their gestational limits. In contrast, 73 facilities increased their gestational limits, and 64 new facilities began providing or publicly advertising procedural abortion services. The number of facilities offering procedural abortion later in pregnancy decreased (327 to 309 providing 14 weeks of gestation or later, 60 to 50 providing 24 weeks of gestation or later), although the proportion of all facilities providing these services held steady. The greatest changes were in the South, where many facilities closed. CONCLUSION: There have been substantial reductions in the number and distribution of facilities offering procedural abortion since the Dobbs decision, with critical decreases in the availability of later abortion services. Some facilities are positioning themselves to meet the needs of patients by opening new facilities, publicly advertising their services, or extending their gestational limits.…

# data[].attributes.headline
Blurred Lines: Disentangling the Concept of Fetal Viability from Abortion Law

# data[].attributes.subject
Blurred Lines: Disentangling the Concept of Fetal Viability from Abortion Law

# data[].attributes.body
"Abortion is an individual and complex decision that women make for a range of reasons. For women making the choice to terminate for an anomaly or a pregnancy complication, they seek abortion services out of concern for their health or for a pregnancy that may never meet a binary definition of viability, regardless of gestational age achieved."

# data[].attributes.headline
Weitz: Later Abortion Care Availability, Quoted Self-Pay Prices, and State Medicaid Acceptance

# data[].attributes.subject
Weitz: Later Abortion Care Availability, Quoted Self-Pay Prices, and State Medicaid Acceptance

# data[].attributes.body
"In this cross-sectional mystery call study of 130 facilities advertising later abortion care in August 2024, self-pay prices increased with pregnancy duration, while service availability and Medicaid acceptance declined. Improving self-pay price transparency and expanding the availability of later abortion care, especially in states with Medicaid coverage, may facilitate more timely access to care."

# data[].attributes.attachment_link.title
Later Abortion Care, Self-Pay Prices, and State Medicaid Acceptance

# data[].attributes.attachment_link.description
This cross-sectional study of US facilities advertising later abortion care examines estimated self-pay prices for procedures and care for pregnancies from 23 to 33 weeks.

# data[].attributes.headline
Ms. Magazine: What to Know About Later Abortions: Myths, Barriers and Patient Stories

# data[].attributes.subject
Ms. Magazine: What to Know About Later Abortions: Myths, Barriers and Patient Stories

# data[].attributes.body
As abortion bans spread and delays mount, women seeking care later in pregnancy face growing barriers and persistent misconceptions about why they need it.

# data[].attributes.attachment_link.title
What to Know About Later Abortions: Myths, Barriers and Patient Stories

# data[].attributes.attachment_link.description
Later abortion is one of the most stigmatized and least understood aspects of reproductive health, and yet some of the voices perpetuating that stigma come from inside the reproductive rights movement itself. Meanwhile, while most abortions happen in the first trimester, later abortions are increasing as restrictions and bans are delaying care and creating the very conditions that make them necessary. To address these misconceptions, Erika Christensen and Garin Marschall created Patient Forward after Christensen experienced a later abortion in 2016. The organization is dedicated to eliminating later abortion stigma and barriers. “We have a lot of folks in the media, including repro[ductive rights] advocates, saying, ‘Nobody wants to do this,’ or, ‘It’s not even available,’ or, ‘Nobody’s getting abortions that late.’ Yes, they are. They’re getting them in safe, modern, incredibly compassionate abortion clinics,” said Christensen. “We do a lot of destigmatizing work.” Patient Forward emphasizes that most people who obtain a later abortion would have preferred to access an abortion earlier: “Contrary to popular rhetoric, patients do not wait. Rather, they are delayed.” “We have found that young people are much later to recognize they’re pregnant because their periods are irregular anyway, because they may not be familiar with all the symptoms of pregnancy,” says Dr. Diana Foster Greene of University of California San Francisco. “People with chronic health conditions are also later to discover they’re pregnant because often chronic health conditions have the same symptoms of pregnancy.”