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Challenging the arbitrary viability standard

Jennifer Marshall Patterson | Pro-life laws respond to the realities of science—and conscience


A doctor performs an ultrasound on scan on a pregnant woman. Associated Press/Photo by Teresa Crawford

Challenging the arbitrary viability standard
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The sound of an unborn child’s heart can be detected at around six weeks gestation. By 15 weeks in the womb, the baby’s heart has beaten about 16 million times. Several states have acted to save beating hearts from abortion at these early stages, including Texas and Mississippi. At stake in the challenges to these laws is the central pro-life legal question of the moment: Can states protect the lives of unborn children before they’re able to survive outside the womb?

On Dec. 1, that question will be before the U.S. Supreme Court during oral arguments in Dobbs v. Jackson Women’s Health Organization. The case involves a Mississippi law protecting life after 15 weeks. The Court has never addressed whether states can enact protections for children in the womb before viability. In Roe v Wade, the Supreme Court adopted the viability standard as an arbitrary line—without scientific justification—barring much state policymaking on abortion before that. Confusion and frustration have emerged in its wake.

Science has changed quite a bit since the Roe decision in 1973. Over the last generation, the ultrasound has come of age (now available in 3D and 4D), routinely allowing pregnant mothers to hear and see their babies’ heartbeats for the first time. Ask a group of college students today if they’ve seen a sonogram of themselves before birth, and nearly all will raise their hands.

Other medical advances have given a much clearer picture of life in the womb. A report from the Charlotte Lozier Institute provides a snapshot of the unborn 15-week-old. She shows a preference for sucking either her right or her left hand. All her major organs are formed. Eye movement can be seen on ultrasound. She can feel pain.

Despite these scientific developments, what hasn’t changed is the confusion emanating from the high Court. While sonograms have advanced, decades of Court decisions have left a murky picture. For one thing, viability is a shifting criterion that varies for each child. It also depends on medical technology. Today, babies have survived outside the womb as early as 21 weeks. However, at the time of Roe, doctors generally considered viability to be 28 weeks. Thus, the viability standard is arbitrary, ambiguous, and outdated.

Abortion advocates in Congress are not waiting for the Court’s answer. The Democrat-led House has staked out its position by passing the Women’s Health Protection Act. The bill is more radical than Roe: it aims to override all state pro-life laws, which it says are “rooted in misogyny.” Other bills have reneged on a longstanding consensus that taxpayer funds will not be used to fund abortion. These spending bills have removed the Hyde Amendment, a pro-life policy protection that has had bipartisan support in the past and that a majority of Americans continue to support.

For its part, the Biden administration quickly got to work to advance abortion. Immediately entering office, President Biden took executive action to allow U.S. taxpayer money to fund foreign family-planning groups that perform abortions or refer for abortion. He also renewed United States support for UNFPA, an international family-planning organization complicit in China’s population-control policies that have included forced sterilization and abortion.

Meanwhile, the Biden administration has taken steps to make chemical abortion more readily available. Such abortions typically involve taking pills at home without a health care professional’s supervision. The Biden administration relaxed regulations for dispensing abortion pills due to Covid-19 and is expected soon to loosen requirements permanently. Already, half of all abortions in the United States each year are chemical abortions. Several states have begun to enact pro-life policy on this front as well.

The moral reality of an unborn heartbeat is hard to ignore. It has echoed in the American conscience more clearly as science has progressed. Abortion advocacy seeks to drown out that reality with increasingly extreme proposals. But the Supreme Court has the opportunity this term to allow Americans to respond to the realities of science—and conscience.


Jennifer Marshall Patterson

Jennifer Marshall Patterson is a visiting lecturer and director of the Institute of Theology and Public Life at Reformed Theological Seminary (Washington, D.C.).

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