Roe redux: Is ‘viability’ still viable as a constitutional doctrine?

The Supreme Court is on the eve of arguments in what could be the most consequential abortion case in decades, Dobbs vs. Jackson Women’s Health Organization. For years, many analysts overhyped cases as possible death knells for Roe v. Wade. Despite annual columns questioning such apocalyptic predictions, which often seemed more political than legal, the granting of Dobbs led me to write my first “this could be it” column.

Dobbs has everything that you would need for a Roe-killing case. That does not mean the court will do so, but it could substantially reduce Roe’s hold over states.

The more interesting question is not whether Roe will go but whether “viability” is still a viable basis for limiting states on abortion legislation.

There is no constitutional question that has left more lasting, continuing divisions in society and on the court. This case has attracted the third highest number of briefs in the court’s history (after leading same-sex marriage case in Obergefell v. Hodges and the ObamaCare ruling in NFIB v. Sebelius); the majority supports Mississippi in its ban on abortions after the 15th week of pregnancy.

Forty-eight years ago, the court held in Roe that “the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” The court embraced a trimester system of escalating state authority, with little such authority in the first trimester but considerable authority — including possible bans — in the third trimester when a baby is viable outside of the womb.

Then, in 1992, a deeply fractured court upheld the “essential holding” of Roe, but a plurality dispensed with the trimester approach in favor of the current “viability” standard. Under this approach, a state could protect the “potentiality of human life” through legislation once a fetus has reached viability “except where it is necessary … for the preservation of the life or health of the mother.” That line was viewed as around 23 or 24 weeks. (The Washington Post confirmed that the United States is one of only seven out of the world’s 198 countries that allow for abortions after the 20th week of pregnancy.)

Since then, abortion has remained a matter of deep divisions. Indeed, the late Justice Ruth Bader Ginsburg was a critic of Roe, seeing it as too sweeping in supplanting state laws. She later blamed the case for reversing the trend toward more pro-choice states.

To uphold Roe, the court likely will require more than the usual arguments of stare decisis, the doctrine that the court should generally stand by its precedents. Pro-choice members and advocates have insisted that Roe is a “super precedent” that cannot be set aside like other cases. (Worth noting is that senators denouncing even the thought of overturning Roe as judicial activism have demanded overturning cases like Citizen’s United and Heller.)

However, putting aside the very existence of such a special category of “super precedent,” the court has never found terra firma on abortion. For roughly 50 years, it issued a litany of plurality or 5-4 decisions. For example, in 2000, a 5-4 majority struck down a partial-birth abortion law in Stenberg v. Carhart but, two years later, voted 5-4 to uphold a ban on partial-birth abortion.

Today, the country remains deeply divided. Polls show strong support for Roe in principle but also support for limiting it. For example, a new poll out of Marquette University Law School showed 2-1 support for Roe, but a greater number of respondents (37 percent) supported the 15-week limit in Dobbs than opposed it (32 percent). 

This term the court was presented with two pre-viability challenges. After Dobbs was accepted with its 15-week limit, advocates sought to enjoin a Texas law that banned abortion after just six weeks. The court ruled 5-4 to allow the Texas law to be enforced. The Biden administration returned to ask for an injunction from the same justices a few weeks later and for a ruling on the statute. As expected, the justices did not enjoin the law but they could address it, either by putting it on the docket for a ruling on the merits or rendering it moot in a decision under Dobbs. In the meantime, this coming week the United States Court of Appeals will hear an expedited appeal on the Texas law in Whole Woman’s Health v. Jackson.

Abortion under ancient laws was treated as a criminal offense, and that status remained when our Constitution was written. The line drawn under many of these early laws was not viability but the “quickening.” In writing Roe, Justice Harry Blackmun noted that “before ‘quickening’ — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy — was not an indictable offense.” The Mississippi law put the line along that earlier quickening stage.

Pro-choice advocates hope Chief Justice John Roberts and Justice Brett Kavanaugh can again be lured to the center to vote with the three liberal justices. Arguments over “super precedent” may have traction with Roberts, who is known as an institutionalist and incrementalist, uneasy about the court ordering transformative changes in society. Reversing Roe is the ultimate sticker-shock moment for Roberts. Yet, it was Roberts who wrote in Citizens United v. Federal Election Commission (2010): “We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”

Some justices are already on record questioning the constitutionality basis for Roe. Some of these justices do not agree with the sweeping privacy “penumbra” found in Roe. While he often sides with Roberts, Kavanaugh also said in Ramos v. Louisiana (2020) (a non-abortion case) that the court cannot maintain a precedent that is “grievously or egregiously wrong.” In the same case, Justice Neil Gorsuch wrote: “The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents.”

So how viable is “viability” if a majority of justices do not see a constitutional privacy basis for the right to abortion?

First, these justices will have to decide whether Roe was flawed from the start or whether, as argued by some, such views of unconstitutionality must be set aside due to historical reliance. Then, unless they overturn Roe entirely, they will have to return to the maddening task of drawing a line between the relative authority of a woman and the state — a line that has wavered between the quickening and viability.

Of course, the court could reaffirm Roe, which — with a six-conservatives majority — would likely mean Roe will remain good law for the foreseeable future. However, it also could abandon viability, or otherwise increase the right of states to place limitations on abortions in the pre-viability stage.

Justice Ginsburg once noted that “it’s hard not to have a big year at the Supreme Court.” That is true — but Dobbs would make for a historic year, if the court were to find the one thing that has long evaded it on reproductive rights: Clarity.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.