June 24, 2022

"The dissent, which would retain the viability line, offers no justification for it either...."

Writes Chief Justice Roberts in his concurring opinion, rejecting the viability line without rejecting the right to abortion or finding a new line to replace the old line.
The viability line is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of “potential life.” Roe, 410 U. S., at 162–163. That changed with Gonzales v. Carhart, 550 U. S. 124 (2007). There, we recognized a broader array of interests, such as drawing “a bright line that clearly distinguishes abortion and infanticide,” maintaining societal ethics, and preserving the integrity of the medical profession. Id., at 157–160. The viability line has nothing to do with advancing such permissible goals. Cf. id., at 171 (Ginsburg, J., dissenting) (Gonzales “blur[red] the line, firmly drawn in Casey, between previability and postviability abortions”).... 
Assuming that prevention of fetal pain is a legitimate state interest after Gonzales, there seems to be no reason why viability would be relevant to the permissibility of such laws. The same is true of laws designed to “protect[] the integrity and ethics of the medical profession” and restrict procedures likely to “coarsen society” to the “dignity of human life.” Gonzales, 550 U. S., at 157....
Again, it would make little sense to focus on viability when evaluating a law based on these permissible goals. In short, the viability rule was created outside the ordinary course of litigation, is and always has been completely unreasoned, and fails to take account of state interests since recognized as legitimate. It is indeed “telling that other countries almost uniformly eschew” a viability line.... The Court rightly rejects the arbitrary viability rule today.

The viability line never made sense to me, and I taught Roe and Casey many times and always invited a students to explain the viability line. I never heard a satisfying explanation, and Roberts is correct, I think, that the dissenting Justices do not offer one. I'm relying on word-searching a document I haven't had time to read carefully, but the closest I come to an attempt at explaining the viability line is at pages 10-11 of the slip opinion:

[Casey] retained Roe’s “central holding” that the State could bar abortion only after viability. 505 U. S., at 860 (majority opinion). The viability line, Casey thought, was “more workable” than any other in marking the place where the woman’s liberty interest gave way to a State’s efforts to preserve potential life.

That is to say, if you want to draw a line, you won't find a better place for the line. 

46 comments:

rhhardin said...

The line will be based on cuteness, as portrayed in sonograms or whatever. It's a matter of getting a maximum support from both sides.

Protection of cute things is a state interest, as well.

Not Sure said...

Biden's statement right now is far more inflammatory than anything Trump ever said. Downright insurrectionist.

He is a disgusting piece of shit.

Roger Sweeny said...

It is a wonderful thing that there in the Constitution is a number, a certain number of days since the last period, and that number determines when an abortion can be prohibited. Alas, no one can find the number, so they argue about what it is.

n.n said...

Six weeks to viability of baby and granny, albeit with disparate near-term limits. Generally, society has a compelling cause to discourage homicide... elective abortion for social, redistributive, clinical, and fair weather causes from conception forward. To recognize and affirm the dignity and agency of women and men, and to mitigate the progress of commoditization in modern models.

Roe's regrets. Ruth's remorse. Republicans' resolution...

Ann Althouse said...

"The line will be based on cuteness...."

When a wanted baby is delivered at the point of viability, it isn't cute. But there is a desperate effort to save this tiny being, and it's hard to reconcile deliberately killing such a creature when it hasn't somehow emerged on its own.

The baby isn't really viable, but is just capable of being saved through extraordinary medical care. And if you're forbidding the abortion because it's viable, you're not taking it out and trying to keep it alive. You're leaving it in, where it will develop and become even more capable of living, which is also true of all the pre-viability unborn entities.

AlbertAnonymous said...

More nonsensical Roberts gibberish. Similar to the affordable care act “it’s a tax” BS.

If he was focused on “calling balls and strikes” as he so famously said before confirmation, he’d have realized quickly Roe and Casey were always garbage judicial legislation, and voted to fully overturn. As it is he’s showing his “politics” and adherence to things “other than the constitution” when he makes decisions.

Scalia used to be so straight forward. It’s not in the constitution. If you don’t like it, go to Congress or your state legislature, as is the way the system is set up, and have at it. But don’t blame me.

Ice Nine said...

>rhhardin said...
The line will be based on cuteness, as portrayed in sonograms or whatever.<

Or, the dramatic but arbitrary appeal to emotion: heartbeat.

hombre said...

"...a bright line that clearly distinguishes abortion and infanticide,....”

A bright line to guide the immoral. There is no moral or scientific distinction between the two. Given the behavior of today's "scientists," however, it will be best to check back tomorrow.

Meanwhile, hurrah!

How much unpunished lefty violence will follow that meets the definition of domestic terrorism while the feds look for parents and Republicans to indict?


RideSpaceMountain said...

@Not Sure

"Biden's statement right now is far more inflammatory than anything Trump ever said. Downright insurrectionist."

They bought the ticket they take the ride. Let the TWANLOC light it up. Belts are in the feedtray...

...I won't even mind if they cross state lines.

Wa St Blogger said...

Are you saying the viability argument is not a viable argument?

rcocean said...

We all understand that if you kill a baby while the mother is 9 months pregnant and is going through labor, that isn't abortion, its more akin to infanticide. Simiarly, killing a fetus in the first 3 months is an abortion. Let the state legislatures decide where to draw the line.

I skimmed through Roberts opinion and it was the usual nonsense. This is a judge who ruled Trump couldn't overturn Obama's unconstitional DACA order because he didn't jump through some adminstrative hoops that have never been spelled out by anyone. He also forbade the Trump adminstration from asking about citizenship on the Census for the same bogus reason. The Commerce secretary didn't go through some nebulous process.

In other words, Roberts is a results driven judge with no judicial philosphy who just makes it up was he goes along. Another O'Connor. His "concurrence" in this case, is just "hey Roe is bad, but maybe we shouldn't go too far, cause it makes me uncomfortable". I bet O'Connor feels the same way. Someone should ask her.

gilbar said...

“a bright line that clearly distinguishes abortion and infanticide,”
umm, didn't the democrats ERASE that distinction? Isn't Abortion legal in Illinois/California/New York up until 19 days after delivery?

Leland said...

I'll start that I learned yesterday that my daughter likely has suffered her second miscarriage. Viability really is a tough thing. Ann is right @11:58AM, a baby just born is neither cute nor viable (although "extraordinary" depends on a definition of ordinary) without medical care. I know I have weighed in viability in regards to the start of the art measures to provide extraordinary care to babies with just 22 to 23 weeks gestation. This gave me comfort with the previous Texas law of 20 weeks, which is an arbitrary line that happens to split nominal gestation down the middle and fit close to what medicine is capable of performing.

Roberts discussion about viability based on the sensation of pain is a much harder stance for me. This is why I oppose Texas's current heart beat law. We already struggle to define life, but to say a human life is just a heart beat seems wrong to me. The majority of a human brain can die yet a small part of it surviving is enough to keep the heart beating. And pain is worse than heart beat as a sign of life. Pain is often consider nerve activity responding to some response. This would make a sneeze a pain, and is that cruel and unusual punishment for the act of breathing? Also breathing is an involuntary act that your brain has to learn. Sudden Infant Death is often just the infant getting upset, holding its breath, and the brain not realizing at some point it needs to breath. Is that lack of maturity in the brain a sign of unviability? By the way, the medical solution for a blue infant (holding its breath) is to stimulate the child to breath; is that causing pain?

It does seem, if we choose to live in a world that is not absolute in terms of no abortion or abortion any time; then we need to draw a line. It just seems, to me at least, that the line will need to be arbitrary but clear and firm, rather than subjective. I could live with subjective, but I don't think the absolutist will allow it.

Carol said...

I can't believe all the residents on reddit pissing and moaning that they won't be able to practice medicine if they can't do abortions.

Last I heard most docs found the procedure appalling and refused to do them. That's what abortion mills were for.

Wa St Blogger said...

Any unwanted pregnancy places a significant burden upon the pregnant person. Any restriction upon their options creates a greater burden. Thus anything other than unlimited abortion at any time creates a restriction on freedom and a restriction on choice. We will forever be arguing where the line should be drawn because we will always have someone for whom the rule greatly impacts. From conception to birth there will be an impact, and for some, they even extend it beyond birth, because a live human is still a burden to its progenitors, sometimes until the death of the progenitors.

having to find some compromise for when then interest of the pregnant woman gives way to the interests of the child will never have a sound, solid, universal demarcation. Right now the only deciding factor that determines the fates of the unborn is whether it is wanted. At no other point in human life is this question even relevant. An unwanted post-birth child, adult, aging parent, all have rights independent of any other person's opinion of their value or their desire for their continuing existence. At no other time is one's humanity and rights dependent on another person's opinion, a person who has a very vested interest in whether they grant validity to that child's value.

As a society we have made a decision that the disabled, the infirm, the mental ill, the elderly all have intrinsic value regardless of whether they are wanted by those who might otherwise be responsible for them. But the advantage they have is that their burden can be distributed across the entire society, not so with an unborn child. The one carrying the child bears a large portion of the burden. Thus the viability line might be a rational demarcation because it is a point in which the main burden carrier can divest herself of that burden and shift it to society by expediting the child's arrival. It is not without additional burden or risk, but the woman usually has had enough time to decide prior to that point and thus can be said to have brought that extra level of risk upon herself by delaying (in most cases, exceptions might occur.)

Sorry for the thought dump. I have a day job and can't spend the amount of time needed to fully flesh out me senior capstone thesis.

Buckwheathikes said...

I fail to understand why the dissent in this case didn't cite Ruth Bader Meinhof:

"Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them."

Lem said...

Alito's arguments were so tight, Roberts couldn't partially abort it, so he decided to help save it and deliver it by cesarian. The baby was just too big.

rhhardin said...

When a wanted baby is delivered at the point of viability, it isn't cute

Cute on the sonogram is what matters. You're maximizing votes for the line.

rhhardin said...

There's a heartbeat before there's a heart. It's actually an autocatalytic reaction or something. You can do it with a chemistry set.

rhhardin said...

There's no bright line at either extreme - you learn to be a human but society agrees that you learn by being treated as a human, so that's how you're treated once you're born.

n.n said...

Or, the dramatic but arbitrary appeal to emotion: heartbeat.

That, or coherent nervous system function, is a universal legal standard for the life of granny et al.

Achilles said...

Roberts is just not a Judge.

He is a terrible political monster that makes a mockery of our government and the foundational principles of our constitutional structure.

Roberts managed to find a way to save Obamacare by calling it a tax. That was his crowning achievement.

He is going to go down in history as one of the worst "Judges" ever to sit on the court.

Mike Petrik said...

Roberts' opinion is well thought through and well-written. But it is not wholly satisfactory. Yes, judicial restraint is a value worth considering when one can find for the proper party without disturbing existing precedent, or at least without overturning it. But when both parties are emphatically asking the court to reconsider the precedent, it seems the right thing to do absent good reason. And there is no good reason in this case. Roe was a lawless decision for sure, but it was also senseless without its viability standard. Roberts' willingness to vitiate that standard without replacing it with any standard simply means that other states will experiment with 14 weeks or 10 or 2 or 0 with exceptions. Legislatures would see 15 weeks as a "safe harbor" but would otherwise be waiting for more decisions and clearer boundaries to be articulated by federal courts based on nothing whatsoever.

mikee said...

The Supremes yesterday pointed out that the US Constitution's enumerated rights are not to be infringed by state law. Today they pointed out that rights not enumerated in the US Constitution are reserved for interpretation by the States or the People. Entirely consistent legal philosophy, and it makes me giddy looking forward to what they do with race issues next.

Does anyone think a Privacy Amendment will ever pass, with Alphabet, Meta, TikTok, et al., basing their entire business model on such a thing as privacy not existing?

Brian said...

"hey Roe is bad, but maybe we shouldn't go too far, cause it makes me uncomfortable". I bet O'Connor feels the same way. Someone should ask her.

Affirmative action is bad, but may be necessary. At least for another 25 years. Then we can ban it.

Only 6 more years...

Blair said...

Someone like Kagan is intelligent and principled, even if I don't share her views. But Roberts is clearly not a serious Judge, and if there was any genuine justice, he would be impeached for his wet prevarication. I would rather be stabbed in the front by Kagan than in the back by Roberts.

rcocean said...

Joe Biden in his written statement on todays SCOTUS decision, just showed why we needed Trump:

Roe v. Wade was a 7 to 2 decision written by a justice appointed by a Republican President, Richard Nixon. In the five decades that followed Roe v. Wade, justices appointed by Republican Presidents — from Eisenhower, Nixon, Reagan, George W. [H.W.] Bush — were among the justices who voted to uphold the principles set forth in Roe v. Wade.

It was three justices named by one President — Donald Trump — who were the core of today’s decision to upend the scales of justice and eliminate a fundamental right for women in this country.


Biden is exactly right. Although you can't blame Ike or Nixon for putting "Pro abortion judges" on the SCOTUS. But Ford knew Stevens was a liberal. Bush knew Souter was a liberal. And George Bush knew roberts was a quish. And Reagan is to blame for O'Connor.

Note: Reagan tried to get Bork but forced by the liberal Senate to settle for Kennedy

HoodlumDoodlum said...

https://twitter.com/kerpen/status/1540339410075635718?s=20&t=j6iUZXq_zgvNq5u2ajVUoA

Jess said...

I'm amazed we have a chief justice that is so verbal about something that doesn't concern him. The Constitution never addressed abortion, so it's totally up to the states to decide how it's handled. He should stay quiet, and do his job.

Critter said...

Americans will come to appreciate that today’s ruling spares us of endless debates on abortion limits that would be applied nationally to no one’s satisfaction. Now this issue will be decided by the states and different rules will be adopted. Over time, states will move closer to a rational consensus, which is not abortion on demand through delivery. That is infanticide.

CStanley said...

Setting the line at viability makes perfect sense in theory because the idea of the line is to balance the competing interests of the baby’s right to life and the mother’s bodily autonomy. After viability it is possible for society to care for the baby, acting as an artificial womb. At that point the argument that the woman should have the right to choose to terminate the baby’s life is no longer justified by her claim to bodily autonomy, because her womb is superfluous to the remaining development if the baby.

That’s in theory but in practice it gets much messier because the baby needs medical care and the mother has to agree to deliver an intact baby.

Narayanan said...

should umbilicus and placenta be factors in considering viability [bio-chemical process sustainment]

Witness said...

setting the line wherever is fine when a legislature decides that's where to set the line. the whole point of having a legislature is to negotiate those things (and update them after seeing how they work out in practice, technology changes, etc.). it's also possible to put the line directly into the constitution if you can get the votes for it, though we've seen that this can backfire.

rcocean said...

As to where the line should be.

I'm not a woman, and have no plans on becoming one. So, when do women usually become aware of being pregnant (not when do they tell their husband or boyfriend)? That might give us a clue as to, where to draw the line.

"Roberts' opinion is well thought through and well-written."

Well, that may be. No doubt he could write the same way and assert the earth is flat. And a few people could say the same.

rcocean said...

As to where the line should be.

I'm not a woman, and have no plans on becoming one. So, when do women usually become aware of being pregnant (not when do they tell their husband or boyfriend)? That might give us a clue as to, where to draw the line.

"Roberts' opinion is well thought through and well-written."

Well, that may be. No doubt he could write the same way and assert the earth is flat. And a few people could say the same.

FullMoon said...

From Cooks link above. Seems like an obvious, easy, and economical solution.

Colonial women procured prequickening abortions mainly with the help of other women in their communities; skilled midwives knew which herbs could cause a woman to abort, and early American medical books even gave instructions for “suppressing the courses,” or inducing an abortion.

EAB said...

“Right now the only deciding factor that determines the fates of the unborn is whether it is wanted. At no other point in human life is this question even relevant.“ This has always been my struggle. If it’s unwanted, it’s just a fetus. If it’s wanted, it’s a baby. The same thing can be both nothing and everything. That makes no sense and is profoundly sad.

CStanley said...


I'm not a woman, and have no plans on becoming one. So, when do women usually become aware of being pregnant (not when do they tell their husband or boyfriend)? That might give us a clue as to, where to draw the line

I can answer that as a woman who always became aware very early in my pregnancies (my youngest child is nicknamed “Peanut” because I was sure I was pregnant before my period was even due, took a home test which was positive and went to my OB-GYN who wasn’t sure it was a viable pregnancy because they could barely find her on the ultrasound.) But I was a woman who used natural family planning so was always attuned to my body and I had fairly predictable cycles.

So I can also say that the same isn’t true for all women, and for some it could definitely be into the second month before there was any reason to suspect pregnancy.

What’s even more problematic about the idea of “allowing enough time” is that a woman may know she’s pregnant but could face changing circumstances affecting her decision- including the loss of support from the baby’s father or the discovery of a medical anomaly.

My own perspective is strongly pro-life and anti-abortion so I’m not endorsing the idea of giving wide latitude. I’m simply pointing out that these situations exist, and are not rare, so making this about adequate time to learn of the existence of the baby isn’t going to work for those who believe there’s a right to abortion. I thought that was a very weak part of Justice Roberts’ opinion.


LilyBart said...

“Right now the only deciding factor that determines the fates of the unborn is whether it is wanted. At no other point in human life is this question even relevant.“

I've noticed this too. When is it life? Apparently, only when the mother wants it.

gadfly said...

Not Sure said...
Biden's statement right now is far more inflammatory than anything Trump ever said. Downright insurrectionist.

It takes more than words to graduate to "insurrectionist." On the other hand, we have January 6.

Quaestor said...

A viability line can work if viability is rigorously defined. The ancient Spartans didn't consider a male baby viable until he was granted membership in a syssitia, an exclusively male dining club. A young Spartan could apply for such membership at age 20, prior to that no law protected his life. But even after surviving the Chasm, the agoge, and membership in a Krypteia assassination gang, a Spartan boy still faced the prospect of being blackballed and consigned to that underworld of social outcasts, the rhipsaspia, where death at the hands of a Spartan citizen was of no consequence.

iowan2 said...

Over time, states will move closer to a rational consensus,

Which is what was happening with homosexual marriage. But SCOTUS is scared silly they are losing power. So they stomped on States Rights.

Bruce Hayden said...

“There's a heartbeat before there's a heart. It's actually an autocatalytic reaction or something. You can do it with a chemistry set.”

Real story. My ex wife had had 2 miscarriages already that year. The second appeared to be a result of insufficient progesterone. She thought that she was pregnant again within a day or so, went in, and her Ob/Gyn put her on progesterone. She was a bit worried, so took an ultrasound as soon as she could expect to see the heartbeat. Ex wife was a stickler for the 3 month rule - that you don’t tell anyone about being pregnant until after 3 months, since most miscarriages occur during that timeframe. So, one of us had the bright idea of taking the tape of that ultrasound over to my parents to announce her pregnancy with their first (and ultimately only) grandchild. Popped the tape into the VCR without comment. All it really showed was a fast beating light and a fuzzy background. Turns out, that this was during the 6 week bombing campaign leading up to Desert Storm, and we had seen video of bombing runs and missile attacks on the nightly news. That was what my parents thought initially that they were watching. Eventually , my youngest brother asked if it could be an ultrasound. Bingo. Ultrasound meant that my then wife was pregnant with their grandchild(/niece). Which was very exciting for everyone there.

I have long been with women who knew almost immediately when they were pregnant. My partner claims that she always knew within hours (except for her ectopic pregnancy). My ex, within a day or so, after her first pregnancy. But there are women who don’t know. Obese women have gone 9 months without knowing, which can be a bad thing for the baby (one problem, I think, is diabetes). My partner’s first husband’s ex wife was walking around at maybe 6 months telling everyone that she would probably never have kids, except that she was so visibly pregnant that everyone questioned her sanity. After their divorce, she happily gave up custody of their son. Most women are probably somewhere in between, figuring it out maybe when they missed a period or two.

Drago said...

Gadfly the Hopeless: "It takes more than words to graduate to "insurrectionist."'

From a far left democratical/nevertrump (but I repeat myself) perspective, all it really takes is words and 1 guy with a viking helmet.

Stephen St. Onge said...

        There’s little substantive difference between the draft decision and the final one, except for the part discussing the dissent and the concurrence.

        The discussion of the concurrence strikes me as especially cogent.  If the court follows the C.J. and “retains” Roe while allowing pre-viability restrictions (which is, IMAO, obvious horseshit self-contradiction), then soon some states will pass laws restricting abortions at less than 15 weeks, and the Court will face this again.

        Eventually, the endless cases will either require the Court to toss Roe and Casey openly, or make up a new bright line and an accompanying load of dishonest nonsense that will unsuccesfully attempt to hide that the real reason for the line is the majority’s opinion of what good social policy should be.

        It’s long since time that the Court admitted that Roe and Casey were constitutional abominations and that it shouldn’t try to tell the states what their abortion laws should be.

Václav Patrik Šulik said...

What the Court has done is to withdraw from the abortion controversy (for the most part). Had Roberts prevailed, the Court would have gotten more involved in the quagmire.

The Sergeant said, "Sir, with all this equipment
No man will be able to swim."
"Sergeant, don't be a Nervous Nellie, "
The Captain said to him.
"All we need is a little determination;
Men, follow me, I'll lead on."
We were, neck deep in the Big Muddy
And the big fool said to push on.