The Long-Standing “Viability Measure” Has Become a Moving Target

Medicine and science have had many years of advancement since the Supreme Court ruled on the landmark abortion cases Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992. At the time of Roe, viability of a fetus to live outside its mother's womb was placed at about 28 weeks. By 1992, when the Court ruled on Casey, viability had already improved to 24 weeks. A little over two decades later, in 2015, the New England Journal of Medicine conducted a study to assess the impact of differing hospital practices on the survival rates and neurodevelopment of “extremely preterm infants,” meaning those born as early as 18 weeks. The journal concluded that infants born at 22 weeks could be kept alive, but that “hospital rates of active treatment varied widely.” Largely because of this study, hospitals began offering lifesaving care to babies at 22 weeks up from 24 weeks. In other words, hospitals switched from giving "compassionate care" until 24 weeks to giving it until 22. This obviously has resulted in an increasing number of surviving preterm babies. To date, the youngest baby on record to survive a premature delivery was 21 weeks old. Other advances continue to be made. Fetoscopy, or laparoscopic fetal surgery, allows surgeons to perform surgery on a fetus as young as 15 weeks, demonstrating the general improvements in fetal survival. In addition to advanced instruments for delicate surgeries, other modernizations in neonatal care include the use of steroids for lung development, more sensitive monitoring devices, increasingly innovative incubators, and better administration of nourishment for sustainability. Since the time when the Supreme Court legalized abortion and held under Roe that a state did not have an appropriate interest in protecting a life before it was self-sustaining, the viability timeline has been steadily shifting. Under Roe sustainability was set at the third trimester and later improved to the second trimester under Casey. Clearly, viability is a moving target. And with science and medicine continuing to advance, there's no telling how much farther it will move, making it increasingly difficult to determine when a fetus is considered viable.