How the Supreme Court could eliminate the abortion viability line

This week, the Supreme Court decided to hear a case concerning Mississippi’s “Gestational Age Act.” The law doesn’t ban abortions outright. But it does prohibit them at 15 weeks gestation (except for medical emergencies and severe fetal anomalies).

This ban, as a lower court and the 5h Circuit ruled, is blatantly unconstitutional. It violates Roe v. Wade and Planned Parenthood v. Casey in prohibiting abortions before viability, the stage (around 23-24 weeks) when there is a reasonable chance of survival after birth. With the current composition of the Supreme Court, however, it should come as no surprise that Mississippi persuaded the court to consider upending precedent of five decades.

As many have noted, the case raises the possibility that the court could overturn Roe v. Wade itself. But it need not. Rather than explicitly declare there is no longer a constitutional right to abortion, the court could simply eliminate the viability line. In so doing, it would continue the death of abortion rights by a thousand cuts. But if it ruled as Mississippi hopes, this would be no mere cut – it would be a monumental gutting of reproductive rights.

Mississippi’s arguments

Mississippi offers utterly unpersuasive arguments for jettisoning this longstanding, eminently workable line. Nor does it offer the “special justification” needed to overturn precedent. But as some conservative justices have signaled, even the precedent for overturning precedent is up for grabs.

Mississippi claims that the viability line is arbitrary and outdated. However, it has not changed since at least 1992, when Casey reaffirmed the central holding of Roe. Mississippi also insists that this line coarsens society and the medical profession by allowing abortions when fetuses can allegedly feel pain. But that charge ignores the fact that, even if previable fetuses have some of the physical structures necessary for pain perception, the full sensory system necessary to interpret pain does not develop before viability.

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