Opinion of the Court
The most obvious problem with any such argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the state of neonatal care at a particular point in time. Due to the development of new equipment and improved practices, the viability line has changed over the years. In the 19th century, a fetus may not have been viable until 32 or 33 weeks after conception or even later.[1] When Roe was decided, viability was gauged at roughly 28 weeks. See Roe, 410 U. S., at 160. Today, respondents draw the line at 23 or 24 weeks. Brief of Respondents at 8. So, according to Roe's logic, States now have a compelling interest in protecting a fetus with a gestational age of, say, 26 weeks, but in 1973 States did not have an interest in protecting an identical fetus. How can that be?
Viability also depends on the "quality of the available medical facilities," Colautti v. Franklin, 439 U. S. 379, 396 (1979). Thus, a 24-week-old fetus may be viable if a woman gives birth in a city with hospitals that provide advanced care for very premature babies, but if the woman travels to a remote area far from any such hospital, the fetus may no longer be viable. On what ground could the constitutional status of a fetus depend on the pregnant woman's location?
- ↑ See W. T. Lusk, Science and the Art of Midwifery 74-75 (1882) (explaining that "[w]ith care, the life of a child born within [the eighth month] of pregnancy may be preserved"); id. 396 ("Where the choice lies with the physician, the provocation of labor is usually deferred until the thirty-third or thirty-fourth week); J. Beck, Researches in Medicine and Medical Jurisprudence 68 (2d ed., 1835) ("Although children born before the completion of the seventh month have occasionally survived, and been reared, yet in the medico-legal point of view, no child ought to be considered as capable of sustaining an independent existence until the seventh month has been fully completed."); see also J. P. Baker, The Incubator and the Medical Discovery of the Premature Infant, J. Perinatology 322 (2000) (explaining that, in the 19th century, infants born at 7 to 8 months' gestation were unlikely to survive beyond "the first days of life").
