November 11, 2012
Mark Osler on the Legal Significance of Viability in Roe v. Wade
In "Roe's Ragged Fringe," the consequences of one odd choice made in Roe v. Wade are explored. In Roe, the majority chose viability as the threshold at which the state's interest in the fetus became significant enough to allow abortion to be barred. However, it chose a different threshold, birth, as the point at which the unborn child itself gained any rights. This article assails the illogic of choosing two points in time to describe the same essential event. At the very least, personhood rights should attach to the unborn child at viability, as at that point the pregnancy can be terminated without an abortion -- through a live birth. The essential trade-off changes from being between freedom of the mother versus the life of the child, to the cost of the premature birth versus the life of the child; a very different calculus. This article urges that this oddity be corrected, and viability be seen as a crucial threshold not only for the interests of the state, but the interests of the child.
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