Abortion rights activists have been debating fetal viability as a goal post in protecting abortion access ahead of the 2024 election cycle.
Viability, or the point at which a fetus can most likely live outside the womb, has become a sticking point dividing the abortion rights camp due in part to its connection with Roe v. Wade, which based its federal protection of abortion on viability as a benchmark.
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Vice President Kamala Harris was highly criticized on Sunday for supporting the vague position that Congress needs to codify the protections of Roe without elaborating on limiting the procedure after the viability threshold.
Many Democratic-aligned groups, such as Planned Parenthood and the American Civil Liberties Union, have long advocated doing away with viability standards, making the decision to abort entirely between a patient and her physician.
“The abortion rights and health movement has been in a death spiral of compromise for about 30 years,” Pamela Merritt of the advocacy group Medical Students for Choice told Mother Jones this week. “We have an opportunity here to build something better, and we’re not even talking about it.”
Medical Students for Choice and other groups have clashed with several state-level pro-abortion organizations hoping to get through legislation or constitutional amendments protecting abortion access and have opted for a more pragmatic approach by accepting viability limitations.
Viability language is already baked into the abortion amendment on the ballot this November in Ohio, with an exception after 24 weeks gestation if a physician deems the abortion necessary to protect the mother’s health — a carefully chosen move in a swing state.
The question of viability limits has split the abortion rights movement as activists in states such as Arizona, Florida, Nebraska, and South Dakota are working on ballot initiatives to enshrine abortion rights into their respective state constitutions come 2024.
But viability is rife with scientific problems irrespective of the political debate.
Susan Bane, a board member of the American Association of Pro-Life Obstetricians and Gynecologists, told the Washington Examiner that when Roe was decided in 1973, medical technology was such that viability was only possible at approximately 28 weeks gestation. Now, a pre-born child can survive outside of the womb between 22 and 24 weeks with medical intervention.
Even within this generalized time frame, Bane said viability is “multifactorial,” as are most health situations.
“There are many factors that impact viability,” said Bane, noting the genetics of the child, the reason for early delivery, and the mother’s health at the time of delivery. “It’s not the exact same for every baby.”
The American College of Obstetricians and Gynecologists holds a similar perspective on the insufficiency of viability as a benchmark.
“There is no definite diagnosis of viability and no test that can definitively determine whether a fetus could survive outside of the uterus, so determining whether a pregnancy is viable beyond the first trimester is often based on clinical judgment. Fetal viability depends on many complex factors, of which gestational age is only one,” according to ACOG. “Even with all available factors considered, it still isn’t possible to definitively predict survival.”
A spokesperson for ACOG previously confirmed for the Washington Examiner that the organization disapproves of all gestational age limits for abortion, including viability.
“The concept of viability of a fetus is frequently misrepresented or misinterpreted based on ideological principles. This perpetuates incorrect and unscientific understandings of medical terms and leads to interference in the practice of medicine,” according to ACOG.
Bane said that accurate medical language is not sufficiently incorporated into the policy discussion on abortion, especially legislation that restricts abortion access.
“There has to be clarity for the people, the boots on the ground — the healthcare practitioners, the hospital systems — when legislation is written,” Bane said. “It’s almost like some of my colleagues have forgotten … how to practice medicine.”
For Bane, however, the medical profession is also to blame for not insisting on clarity and acting within once widely agreed-upon guidelines. This is especially the case in the lack of medical care provided to those struggling with a miscarriage or ectopic pregnancy, which Bane says is categorically different than an induced elective abortion procedure.
Republican presidential candidates and senators up for reelection have also been debating the need for greater clarity on anti-abortion policy after a string of disappointing losses in the 2022 midterm elections after the Dobbs v. Jackson Women’s Health Organization decision.
Senate Minority Leader Mitch McConnell‘s (R-KY) strategy session with fellow Republicans last week analyzed a survey with more than 2,500 responses from likely voters nationwide, collecting in-depth data from six focus groups in Iowa, Ohio, and Montana. The study found that 41% of Republican women disagreed with the Supreme Court’s decision to overturn Roe. Approximately 24% of Republican women identify as “pro-choice” and 32% identify as neither “pro-choice” nor “pro-life.”
A recent Axios poll also found that while 51% support abortion up to 15 weeks gestation, support for abortion at 24 weeks drops down to 27%. Only 43% of Democrats support third-trimester abortion as well.
“You can’t get away with a label anymore,” Sen. Cynthia Lummis (R-WY) said. “You have to dive in and talk to people about very specifically where you are on that subject if you’re running for public office.”
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Bane says the turn away from the “pro-life” position is mostly out of confusion and fear that could be dispelled by better communication about the science.
“With the legislative chaos [post-Roe] … people are scared that their daughters, their granddaughters [are] going to die because we our profession won’t take care of them … when they have a medical emergency,” Bane said. “So we have to ensure the public that we know how to do our job. … We may not be able to save both, but darned if we’re not going to try.”
