In a post on the Originalism blog, Andrew Hyman points out that the concept of viability was well known at the time the Fourteenth Amendment was ratified but that it was “universally rejected as a legal standard” for regulation of abortion.
Hyman quotes to similar effect an article (“Is ‘viability’ viable? Abortion, conceptual confusion and the law in England and Wales and in the United States”) published last year in the Journal of Law and the Biosciences by Elizabeth Romanis, a feminist academic who is strongly supportive of abortion rights. Building on the work of other feminist scholars, Romanis argues that “viability is not a conceptually legitimate basis for abortion regulation”—and that abortion should be freely available beyond viability.
I’ll set aside here the debate over abortion policy. Like Hyman, I agree with Romanis that the viability standard is incoherent. That’s part of the reason the Supreme Court should swiftly overturn the illegitimate Roe/Casey regime.
On the moral questions involving abortion, the use of the viability standard has always struck me as backwards. How strange that the vulnerability and dependence of the unborn child would result in lesser protection. If it were safe to extricate the “viable” unborn child from the mother’s womb, then it seems to me that the mother would have a much stronger moral case for “terminating the pregnancy” via early delivery for the viable child (who, on my counterfactual hypothesis, would be healthy) than for the pre-viable child (who would die).