At the point of fetal viability, says the Supreme Court, states’ interest in the “potential life” of the fetus becomes “compelling” enough that they can ban abortion even if doing so “overrides the rights of the woman”
, Justice Samuel Alito said it made “no sense”. Even some who support abortion rights think it an ill-conceived marker. How did the Supreme Court settle on the viability standard? And would an earlier cut-off muster more support?
The rationale for viability is that, once a fetus can survive apart from its mother, it obtains a special status warranting state protection. Some critics think the ability to survive independently should not be a necessary condition for such protection. They ask why independence should matter more than, say, a fetus’s capacity to feel pain. Exactly when that happens is contested, and may be anywhere between 20-32 weeks.
Justice Alito’s draft opinion would let states restrict abortion from day one of pregnancy. The court may yet surprise by scrapping the viability standard while preserving abortion rights until 15 weeks, when Mississippi’s ban would take effect. Chief Justice John Roberts seemed inclined to that approach
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