The right to choose abortion seems more at risk than has been the case for nearly half a century, with the Supreme Court this week hearing Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi law banning abortion at 15 weeks. To uphold the Mississippi law — as many expect the court to do — the justices would have to declare either that there is no right to choose or that contrary to Roe v. Wade and the cases following it, states may ban abortion before viability, the point at which survival is possible outside the womb (usually sometime between 21 and 24 weeks).
Mississippi and the antiabortion groups supporting it argue that having viability as the threshold makes the United States an outlier. Most wealthy democracies allow abortion but only until the 12th to 14th weeks of pregnancy. Polls in the United States suggest that many voters would support a similar rule. Support for Roe v. Wade runs high, as does backing for legal abortion early in pregnancy, but that support wanes for later abortions. Most Americans, the antiabortion argument goes, would not embrace Roe if they understood how permissive American abortion law really is. Under this thinking, the Supreme Court should feel less concerned about dialing back abortion rights if the conservative supermajority is simply bringing US law in line with the rest of the world.
The history of the viability line does suggest that the United States is an outlier, but not for the reasons that the Mississippi case suggests. The viability line has had such staying power because it is people with the fewest resources who are the most likely to seek abortion — and because many of them cannot get together the funds to pay for an abortion until later in pregnancy.
The viability line emerged because the justices in the 7-2 Roe v. Wade decision believed that some women would struggle to access the procedure earlier in pregnancy. Harry Blackmun, the justice who wrote the majority opinion in Roe, had initially been inclined to find a middle ground — he favored allowing states to ban abortion after 12 weeks because “statistical writings seemed to focus on“ the difference between the first trimester and the rest of pregnancy.
But among Blackmun’s colleagues, using viability as the threshold had more support. Some suggested that it was the only principled line that could be drawn — at the point that survival was possible outside the womb, there was no zero-sum conflict between the woman and the fetus. Thurgood Marshall stressed that any earlier limit would effectively block access, given “the difficulties which many women may have in believing that they are pregnant and in deciding to seek an abortion.” Blackmun settled on viability, and it has been a core dimension of abortion jurisprudence ever since.
Marshall’s point about access turned out to be more important than he might have anticipated. In most of the European nations to which Mississippi compares the United States, there is some form of universal health insurance. The same is not true in the United States — not least when it comes to abortion. Just four years after the Supreme Court decided Roe, the justices proclaimed that there was at most a right to decide about abortion, not a guarantee that anyone could actually end a pregnancy. That meant that states could prohibit low-income women from using Medicaid to pay for abortion. Soon the court upheld the Hyde Amendment, a federal prohibition on Medicaid funding for abortion.
With no health insurance, low-income women have had to rely on a patchwork of resources, including support from friends, family, abortion-rights groups, and other organizations.
Even early in pregnancy, abortion costs hundreds of dollars — a figure that does not include transportation costs, lost wages, child care expenses, and the price of lodging. Surgical abortions can cost even more, especially in the second trimester, averaging roughly $1,200 at 20 weeks. Once states began to put in place an ever-growing number of incremental restrictions, the real price of abortion rose. Travel distances increased; waiting periods required longer stays away from home and more time off work. The viability threshold increasingly looked like a crucial compromise, or even a flimsy sort of safety net: Women would be given longer to have an abortion because the government offered them no help to pay for it, and women would need longer to come up with the money themselves.
In the years since Roe, the viability line has come in for more than its fair share of criticism. In her first abortion decision on the Supreme Court, Sandra Day O’Connor suggested that the viability line was unworkable because it depended on the state of medical technology and even on the specific pregnancy and hospital. Bioethicists criticized viability too, suggesting that a fetus’s ability to survive outside the womb (or the fetus’s degree of dependency on someone else) had little relationship to the moral worth of life in the womb.
But even those who don’t like the viability line should recognize it for what it is — a reflection of the reality that people who have abortions are disproportionately likely to be low-income people who need time to put together the money to pay for a procedure. And eliminating the viability line would not bring the United States in line with what we see in other wealthy democracies. Instead, it would lead large swaths of the country to effectively ban abortion outright. Many conservative states have no intention of allowing abortion earlier than 15 or even 12 weeks — roughly half of them would ban all or most abortions if Roe were gone.
If the Supreme Court eliminates viability as the threshold for legal abortion, many will pretend that the United States is simply normalizing its rules on abortion. The truth is uglier. Viability was never a real safety net for those without resources, but the Supreme Court seems ready to take even that away.
Mary Ziegler is a professor at Florida State University College of Law and author of “Abortion and the Law in America: Roe v. Wade to the Present.”