Also known as: viable fetuses · fetal viability · viability
Written by attorneys — see sources below.
A developmental stage of an unborn child at which it has reached sufficient maturity to have a reasonable likelihood of survival outside the uterus. This stage marks the point at which states may regulate or prohibit abortion under rational basis review following the overruling of prior federal constitutional protections.
Valerie Voss, twenty-six weeks pregnant, sought an abortion in a state that had enacted a total ban after the federal framework changed. The clinic refused the procedure because medical evidence showed the fetus had reached viability. Valerie sued, arguing the ban violated her rights, but the court upheld the prohibition because the state had returned authority to regulate at viability.
Veronica Varela, at twenty-four weeks, sought a dilation and extraction procedure for a nonviable pregnancy diagnosis. The state prosecuted the physician under a ban on certain late-term methods. The court examined whether the fetus had attained viability before applying the prohibition.
In 1999 the Nebraska Legislature enacted a statute that prohibits any partial birth abortion. The statute defines partial birth abortion as an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery. The statute provides an exception only when the procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. Violation of the statute is a Class III felony carrying a prison term of up to twenty years, a fine of up to twenty-five thousand dollars, and automatic revocation of the physician's license to practice medicine in Nebraska. Dr. Leroy Carhart is a Nebraska physician who performs abortions in a clinical setting. He brought suit in federal district court seeking a declaration that the Nebraska statute violates the Federal Constitution and an injunction forbidding its enforcement. After a trial on the merits during which both sides presented several expert witnesses, the District Court held the statute unconstitutional. The Eighth Circuit affirmed the judgment of the District Court. The evidence at trial addressed several abortion procedures used after the first trimester. The most common second-trimester method is dilation and evacuation, or D&E, in which the cervix is dilated and instruments are used to remove fetal tissue, often requiring dismemberment. A variation known as intact D&E or D&X involves removing the fetus intact, usually after collapsing the skull, and is used after approximately sixteen weeks of gestation. Dr. Carhart testified that he attempts to use the intact D&E procedure in the 10 to 20 cases a year that present to Dr. Carhart because it reduces the risk of injury from sharp bone fragments, minimizes instrument passes, and lowers the chance of leaving retained tissue. The District Court found that the banned procedure is sometimes safer than other methods for women undergoing abortions between twelve and twenty weeks of gestation. It credited testimony that the intact D&E procedure reduces operating time, blood loss, risk of infection, complications from bony fragments, and instrument-inflicted damage to the uterus and cervix. The court also noted that a select panel of the American College of Obstetricians and Gynecologists had concluded the procedure may be the best or most appropriate in particular circumstances. The Court of Appeals accepted these findings. The Supreme Court granted certiorari to review the judgment of the Court of Appeals.
View caseVincent Vale operated a clinic providing abortions up to twenty-three weeks. State officials closed the facility for performing procedures after the point of viability without proper licensing. Vale challenged the closure, claiming the viability determination lacked sufficient medical evidence.
Mississippi's Gestational Age Act provides that, except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks. The Mississippi Legislature made findings about prenatal development and the risks and nature of dilation-and-evacuation procedures used after 15 weeks. Jackson Women's Health Organization, an abortion clinic, and one of its doctors filed suit in Federal District Court challenging the statute. They alleged that the law violated this Court's precedents establishing a constitutional right to abortion. The District Court granted summary judgment for the respondents and permanently enjoined enforcement of the law. The Fifth Circuit affirmed the District Court's decision. Petitioners defended the statute before this Court, arguing that Roe and Casey were wrongly decided. The Supreme Court granted certiorari to consider whether all pre-viability prohibitions are unconstitutional and whether Roe and Casey should be overruled.
View caseViola Volkov, eighteen weeks pregnant, challenged a state waiting period law. The state defended the restriction by arguing it protected potential life even before viability. The court applied the viability framework to determine whether the regulation imposed an undue burden.
In March 1970, Jane Roe, a single woman residing in Dallas County, Texas, instituted a federal action against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face. She also sought an injunction restraining enforcement of the statutes. Roe alleged that she was unmarried and pregnant. She wished to terminate her pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions. She was unable to obtain a legal abortion in Texas because her life did not appear to be threatened by continuation of the pregnancy. She could not afford to travel to another jurisdiction to secure a legal abortion. James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes. Two such prosecutions were pending against him in the Criminal District Court of Dallas County. He described conditions of patients who came to him seeking abortions. He claimed that for many cases he was unable to determine whether they fell within or outside the exception recognized by Article 1196 of the Texas Penal Code. John and Mary Doe, a married couple, filed a companion complaint also naming the District Attorney as defendant. The Does alleged that they were a childless couple. Mrs. Doe was suffering from a neural-chemical disorder. Her physician had advised her to avoid pregnancy until her condition materially improved. She had discontinued use of birth control pills pursuant to medical advice. If she should become pregnant she would want to terminate the pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions. The two actions were consolidated and heard together by a duly convened three-judge district court for the Northern District of Texas. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class and Dr. Hallford had standing to sue and presented justiciable controversies. The Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that the Texas criminal abortion statutes were void on their face. The court dismissed the Does' complaint while denying injunctive relief. The plaintiffs Roe and Doe and the intervenor Hallford appealed to the Supreme Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney cross-appealed from the grant of declaratory relief. Both sides also took protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision by the Supreme Court.
View caseValerie Viera sued after a car accident caused the death of her twenty-two-week fetus. The defendant argued no viable fetus existed to support a wrongful death action. The court dismissed the claim because the fetus had not reached the stage of independent survival.
The Supreme Court of Florida consolidated three cases for review under its conflict certiorari jurisdiction. The District Court of Appeal, Third District, in Dorta v. Blackburn, 302 So.2d 450 (Fla. 3d DCA 1974), concluded that assumption of risk remained an absolute bar to recovery. The District Court of Appeal, First District, in Parker v. Maule Industries, Inc., 321 So.2d 106 (Fla. 1st DCA 1975), and the Fourth District in Rea v. Leadership Housing, Inc., 312 So.2d 818 (Fla. 4th DCA 1975), reached opposite conclusions on this issue. Subsequently, the First District decided additional cases including Smith v. Carter, 338 So.2d 845 (Fla. 1st DCA 1976), Hambrick v. Jackson, 333 So.2d 96 (Fla. 1st DCA 1976), and Manassa v. New Hampshire Insurance Co., 332 So.2d 34 (Fla. 1st DCA 1976). The Second District also addressed the matter in Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976), rejecting the doctrine's continued viability as a complete bar. Accordingly, the petition for writ of certiorari to the District Court of Appeal, Third District, in Blackburn v. Dorta, Case No. 46,621, is granted, the decision of that court is quashed, and the cause is remanded for further proceedings not inconsistent herewith. In Leadership Housing, Inc. v. Rea, Case No. 47,621, and in Maule Industries, Inc. v. Parker, Case No. 48,443, the District Court decisions are approved, and writs of certiorari are discharged. The cases were decided on May 5, 1977, with rehearing denied on July 27, 1977. Justice Sundberg authored the opinion in which Chief Justice Overton and Justices Adkins, Boyd, England, and Hatchett concurred.
View caseVaughn Valentine sought an abortion at twenty-five weeks without notifying her husband. The state enforced a notice law tied to viability determinations. The court assessed whether the viability threshold justified the notice requirement under the applicable standard.
The Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989, established several requirements governing the performance of abortions within the Commonwealth. The Act required a woman seeking an abortion to provide informed consent after receiving specific information from a physician or counselor at least twenty-four hours before the procedure. It mandated that a minor obtain the informed consent of one parent, subject to a judicial bypass option. It further required a married woman to sign a statement confirming that she had notified her husband of her planned abortion, unless certain exceptions applied. The Act also imposed reporting obligations on facilities providing abortion services and defined a medical emergency exception to the various requirements. Before any of these provisions took effect, the petitioners brought suit in the United States District Court for the Eastern District of Pennsylvania. The petitioners were five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services. They sought declaratory and injunctive relief and challenged each provision as unconstitutional on its face. The District Court entered a preliminary injunction. After conducting a three-day bench trial, the District Court held all the provisions unconstitutional and entered a permanent injunction against their enforcement by Pennsylvania. The Court of Appeals for the Third Circuit affirmed in part and reversed in part. It adopted the District Court's factual findings and legal analysis except with respect to the spousal notification requirement. The Court of Appeals upheld the spousal notification requirement as constitutional and applied the undue burden standard in evaluating the provisions. The Supreme Court granted certiorari to consider the constitutionality of the challenged provisions of the Pennsylvania statute.
View caseViability occurs when the fetus has a reasonable likelihood of survival outside the uterus, typically around twenty-four weeks. States regained authority to regulate or prohibit abortion at this stage after the federal constitutional framework changed. Medical evidence determines viability on a case-by-case basis.
Supporting sources
Most courts have held that a viable fetus is not a human being within the meaning of homicide statutes. This narrow interpretation prevents applying murder charges to the death of a viable fetus in many jurisdictions. Some states have created separate fetal homicide statutes to address this gap.
Yes, states may prohibit abortion after viability under rational basis review. The authority to regulate at this stage returned to the states following the overruling of prior federal protections. Regulations must still comply with other constitutional limits such as equal protection.
Supporting sources
Courts generally require birth and live status for a decedent under wrongful death statutes. A viable fetus that dies in utero does not support such an action in many jurisdictions. Legislative changes may expand coverage in some states.
…the abortion procedure in ways that are reasonably related to maternal health. Pp. 163-164. (e) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical…