This Week in Abortion - How Viability Became the Standard

A collection of good reads, events from the week, and occasional insights from me, Rachel Leven.

Apparently, the email function for the newsletter was not working properly. So, if you have reached out and I missed it, please accept my apologies. You can now reach me here. This week is another original with Good Reads and Legal Updates at the end.

How Viability Became the Standard

It’s easy to get the impression from a lot of recent coverage that in the early 1800s the world was just a more progressive, better place that believed in the sanctity of the “(white) women’s domain.” (Read this piece from National Geographic or watch PBS.)

Of course, things are never so simple. It’s nice to romanticize a time when abortion was freely the domain of midwives, but returning to an age of herbs and ammonia does not seem especially desirable. And, while abortion wasn’t strongly regulated in the US, there were taboos and loose common law precedence working against abortions after “quickening,” which is when a pregnant person feels the first movements of the fetus. Quickening as a standard is pretty subjective and pretty early, happening as early as 16 weeks.

In any case, professional men with big egos and white coats stepped in. By 1900 abortion was generally banned - first after quickening, then entirely. At the time that Roe v Wade was decided, only four states - Alaska, Hawaii, Washington, and New York - allowed abortions for everyday women. Pretty much every state had to adjust.

So, viability as defined today essentially comes from the rumination of nine lawyers (seven in the majority) attempting to translate Greek, Jewish, Christian, English Common Law, and medical practice into practical guidance. They note,

Physicians and their scientific colleagues have regarded [quickening] with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid.

The judges state a need for balance but also recognize that the quickening standard is outdated and not particularly scientific. The judges pick viability as an update to the old rule because it provides a more mathematical way to predict, “the capability of meaningful life outside the mother's womb.”But, the concept was originally developed to help physicians better manage prenatal care, not for abortion.

Having followed the Court’s lead, most states that allow abortion today make “viability” the conceptual cutoff for when the rights of the fetus outweigh the unfettered choice of the pregnant woman (and her responsibilities and hopes, and dreams).  See the full distribution on the graph below.

While viability might be more scientific than quickening, it’s still a pretty fuzzy concept. Even by the estimate in Roe, viability can happen anywhere between 24-28 weeks. That’s a tenth of a pregnancy and the potential range has expanded since then. Are individual babies really that different? Is there an age (even, say, 28 weeks) at which all babies are essentially viable and abortions should only done for the health of the mother? Then again, there are no bright lines in pregnancy so is it right to tell a woman who comes in at 27 weeks and 6 days that she can have an abortion, but reject the same woman who comes in one day later? And as part of the “meaningful life” the judges mention, should we also differentiate between surviving and thriving? For example, is a baby that will only live for a matter of hours truly viable?

Worry not. In two weeks I’ll surely be ready with all the answers. And if you have thoughts that can’t wait, email me.

Good Reads

• A new book focuses on making the case, “that ejaculation is voluntary, while ovulation is involuntary.” See the interview here.

• Call Jane is out. The reviews are middling, but I have long had a rule…any mainstream media that mentions abortion, in which a woman actually goes through with an abortion has earned my eyeballs. ( Sex Education and P-Valley are recent ones on the list.) Listen here for more on abortion in TV and Movies.

• This article, “Spread of Catholic hospitals limits reproductive care across the U.S.” is a reminder of why having a “right” to get an abortion does not guarantee “access” to abortion. Also interesting is the underlying trend: A decade of hospital consolidations (religious and secular) that Kaiser Health News suggests was exasperated by pandemic relief money and conservatives say started with the Affordable Care Act.

Legal Updates

• Abortion up to 15 weeks in Arizona is and will be legal until at least the end of the year. I’ll spare you the details, just know that things were getting very confusing. Kudos to the conservative attorney general for making a good policy move.