Viability a point of contention among abortion rights activists
Viability limits or clauses were included in Ohio's initiative, but activists elsewhere have debated whether they're necessary for passage
The biggest dispute currently in the abortion rights movement is whether to include viability clauses or limits, as their opponents call them, in ballot initiatives that would enshrine abortion rights in state constitutions.
Viability was the basis for the Roe V. Wade decision. According to that decision, no state legislature could regulate abortion until after that point. Generally speaking, most doctors would consider the point of lung development around the 22nd week of pregnancy as the point of viability.
“It's the question of the year,” said Bonyen Lee-Gilmore, who spoke on behalf of the National Institute for Reproductive Health.
Viability was always a debate because people contended viability shifted earlier as medical advancements and technology permitted embryos and fetuses to develop outside the womb potentially. Legal scholars who criticized the Roe opinion had issues with the framework.
Justice Harry Blackmun, a lawyer for the Mayo Clinic before his time on the bench, wrote the Roe opinion. Many of his fellow justices found it to be specious reasoning. Supreme Court Justices William Douglas and William Brennan wanted to root the right to an abortion on the Fourteenth Amendment, which guarantees equal protection under the law.
The decision permitted regulation after the point of viability. Many states did just that. They passed laws preventing abortion later in pregnancy. In recent years–even before the Dobbs decision–activists had pushed for greater reproductive freedom later in pregnancy within state laws with the call that “Roe was the floor, not the ceiling.”
In Ohio, the recent success of its ballot initiative came with wording that regulation was permitted after the point of viability. Activists had sought to word the initiative in such a way as to return the state’s abortion care to what it had been before the Supreme Court overturned Roe. This article is not meant to detract from Ohio's enormous and meaningful progress. Those activists should be proud that the ballot initiative is part of their legacy. It’s just to point out some of the complications that arise from wording ballot initiatives in such a way. As with any political victory, unexpected and new challenges arise from it.
Opponents of viability clauses have pointed to the case of a woman in Ohio who was cleared by a grand jury of abusing a corpse after she left a nonviable fetus at home following a miscarriage. Reproductive rights activists criticized the prosecutor who convened the grand jury. It had implications for abortion rights because the judge who presided cited the ballot initiative’s language during proceedings.
Jonathan Entin, a legal observer in Ohio and professor at Case Western Reserve University School of Law, has been writing and following what’s happened with abortion jurisprudence before and after the constitutional amendment was passed in the state.
Entin said some Republicans had spoken about attempting to pass a ballot initiative themselves to limit abortion access. But they didn’t want to do it during a presidential year because it may galvanize the pro-choice side to vote against Donald Trump.
“Undoubtedly, they're going to be thinking about post-viability restrictions,” Entin said.
Other states, like Missouri, have seen activists split over language used in ballot initiatives. Some said it wouldn’t be politically possible to pass an amendment without viability clauses or limits included. Others have said it’s unnecessary and have pointed to polls indicating public support for abortion rights even without viability included in the text.
Pamela Merritt, executive director for Medical Students for Choice, said there is no way to determine viability definitively. Her organization opposes viability limits, which she said were dangerous to include in initiatives.
“Viability should not be used to restrict access to abortion care,” Merritt said. “It is a term that most voters don't understand, but that is easily manipulated to harm people by legislators and activists who oppose abortion.”
Bonyen Lee-Gilmore said that there was an urgency to pass initiatives in states where abortion bans were triggered following Roe’s demise. She said the movement is grappling with questions of how much to go for in states that have established themselves as hostile to abortion access.
“There is a real tension between the urgency of addressing the here and now because the harm in the aftermath of Roe being overturned is real,” she said. “We're seeing people get denied care having to travel out of state. But at the same time, for decades, we've watched a segment of our population have to do that anyways under Roe.”