Can SCOTUS Draw a New Line on Abortion?

The Supreme Court has held that the Constitution does not allow states to ban abortions before viability, which is the time at which the foetus can live outside of the womb. This ruling was made nearly 50 years ago. Today, Mississippi will defend its ban on abortions within 15 weeks gestation and ask the Supreme Court to repeal that rule. It claims it is not constitutionally justifiable.

Mississippi makes a valid point. The viability rule doesn’t satisfactorily address the conflicting moral claims that are at the center of the abortion debate. The Court could also say the same about the alternative policies, which include any policy that state legislators might choose if the Constitution doesn’t protect the right to abortion.

It doesn’t matter what perspective you have, but the Court recognized that right or invent it when, in 1973 it overturned Texas laws that banned abortion, except where it was necessary to preserve the mother’s health. Justice Harry Blackmun was the author of the majority opinion. Roe v. WadeAlthough initially inclined to draw the line at 13 weeks into the first trimester, he ultimately decided on viability. He said that “viability” is typically placed around seven months after birth (28 weeks).

The 1992 case Casey vs. Planned ParenthoodAs such, the Court confirmed Roe“The central holding of the Court is that viability “marks the point when the State’s interest fetal health and life is sufficiently constitutional to justify a ban on all nontherapeutic abortions. According to it, the judgment does not depend on viability occurring at around 28 weeks as is usual. RoeIt may occur at between 23 and 24 weeks of pregnancy as it does sometimes today or slightly earlier if the future fetal respiration capacity is improved.

This distinction is valid even though viability can be questioned technologically. RoeThe ability to breath, whether with or without artificial aid, is the threshold at which the State’s legitimate and important interest in the potential of life becomes “compelling.”

Based on RoeAccording to the author, this is because “the fetus then has the possibility of meaningful living outside of the mother’s womb.” According to CaseyIf “it is possible to sustain and nourish a second life without the mother’s consent, then viability can be defined as when the independence of that life is protected in a way that is reasonable and fair.

Mississippi claims that the logic boils down into a circular argument: if an unborn infant can live without the mother’s consent, the State has an interest in this child. If “independence” is what you are looking for, this logic can be expanded in ways few people would accept. Infants depend on others even after they have been born, while those with disabilities may require such help indefinitely.

The viability rule is a pro-choice option. It allows nearly all abortions. Less than 1% of them are done at 21 weeks. Mississippi’s 15 week limit would ban about 5% of abortions within the state.

Why fifteen weeks? Why 15 weeks?

The question of where on the continuum, from conception to birth, another person’s rights to life overrides a woman’s right bodily autonomy is a complex one. There are several answers and they all don’t satisfy everyone. This will be true regardless of where the Court decides to rule on the government’s right to do so.

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