ABORTION REGULATION: EXPLORING THE Megha Nagaram RELIABILITY OF FETAL VIABILITY IN ABORTION LEGISLATION

Abortion Regulation: Exploring the Reliability of Fetal Viability in Abortion Legislation

Megha Nagaram

Edited by Sabrina Ghashehbaba

The United States Supreme Court is currently reviewing the case of Dobbs v. Jackson Women’s Health, a case that will determine the course of abortion rights in this country. Currently, the United States has been following the precedent set by the landmark decision of Roe v. Wade. The decision of Roe v. Wade set forth guidelines for how states could regulate abortion while protecting a women’s right to make medical decisions. In the first trimester, only a woman and her physician may make any decisions to abort; in the second trimester, the state may impose regulations concerning maternal health. However, in the third trimester, once fetal viability is achieved, the state has the power to regulate and ban abortions. Casey v. Planned Parenthood established the standard that laws that regulate abortion prior to fetal viability create a substantial obstacle in the way of a woman seeking an abortion. In 2018, the state of Mississippi enacted the “Gestational Age Act” in order to prohibit abortions after the age of 15 gestational weeks. Jackson Women’s Health Organization, the only licensed abortion clinic in Mississippi, filed a lawsuit to challenge the law that seems to violate two Supreme Court precedents.

The conservative majority on the Supreme Court seems poised to uphold Mississippi's Gestational Age Act law, overturning Roe. If overturned, the court must restructure its framework for how abortion is regulated. The case itself calls into question the current standard of fetal viability. A domestic and international analysis of fetal viability exposes its arbitrariness as a guideline for abortion regulation. The vast majority of abortion in high-income countries, including the United States, happens prior to fetal viability. Fetal viability itself is far too broad to be interpreted as a legal precedent, making it a dangerous benchmark for reproductive rights. To preserve a woman’s right to make her own reproductive decisions and protect her bodily autonomy, the Supreme Court must restructure the standard of regulating abortion to disclude fetal viability in favor of universal, unregulated abortion.

I. INTRODUCTION

Almost 50 years after the Supreme Court legalized abortion, women in the United States are at risk of losing this right. A civil liberty provided by the due process clause of the Fourteenth Amendment, the right to an abortion is slowly being chipped away by regulations, denying women their reproductive rights. However, the primary idea remains intact: women should have the right to an abortion prior to fetal viability, and they should have access to abortion in case of danger to the mother’s life or health post fetal viability.202 Different states have restricted access to abortion in different ways, but most abortion regulation primarily focuses on fetal viability and gestational age.

Using fetal viability as the benchmark for abortion regulation is supported by those who favor abortion rights and oppose it. This measure allows for a defined demarcation in gestational age compared to the more arbitrary nature of Roe’s trimester-based framework, as fetal viability establishes a line in which a pregnancy must either be a pre-fetal or post-fetal. In the pre-fetal viability world, states may pass restrictions on abortions as long as they are not substantial obstacles in the path of a woman who means to attain an abortion. In the post-fetal viability world, states may impose whatever restrictions they wish only allowing for abortion when the pregnancy endangers the mother’s life. Through a comparison of the laws in the United States and other highincome countries, this paper will illustrate that using fetal viability is not a reliable benchmark to dictate abortion regulations.

II. BACKGROUND

On January 22, 1973, The Supreme Court made the landmark decision of legalizing abortion in Roe v Wade. 203 Roe argued that a Texas law prohibiting abortion except in cases of a physician order to save a woman’s life was unconstitutional and too vague. The court held that the Texas law was unconstitutional as it violated a woman’s fourteenth amendment right to privacy.204 Citing the Due Process Clause of the Fourteenth Amendment, the court acknowledged that the right to privacy includes a woman’s decision to choose to terminate her pregnancy via abortion. However, the Court found that a woman’s right to privacy must balance against the state’s interests. Justice Blackmun highlighted that regulation of abortion must be compelling in its protection of state interests and must be legitimate.205 State laws may not then infringe upon a woman’s right to choose to have an abortion unless the regulations concern the health of pregnant women or the potential life of fetuses. Initially, the court set guidelines for this balance based on the trimesters of pregnancy. In the first trimester, only a woman and her physician may decide to end a pregnancy with an abortion. The state can regulate abortions in the second trimester of pregnancy if the regulations pertain to the mother's health. In Roe v Wade,206 the court recognizes the beginning of the third

202 Alex Markels, Supreme Court’s Evolving Rulings on Abortion, NPR (Nov. 30, 2005, 12:00 PM), https://www.npr.org/templates/story/story.php?storyId=5029934. 203 Roe v. Wade, Oyez, https://www.oyez.org/cases/1971/70-18 (last visited Mar 3, 2022). 204 Brian Duignan, Roe v. Wade, Encyclopedia Britannica (Dec. 10, 2021). .https://www.britannica.com/event/Roev-Wade. 205 Id. 206 Supra Oyez.

trimester as the point of fetal viability, allowing states to regulate and prohibit abortions after this point. However, the court stipulated exceptions made to safeguard the life and health of the mother to be lawful. The court defines fetal viability as the point at which the fetus is capable “of meaningful life outside the mother’s womb” to occur at about 24 weeks of pregnancy.207 The concept of fetal viability is a common theme throughout many of the court’s decisions. For example, in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, the court established that states could not impose undue burdens on women seeking an abortion before fetal viability.208 The court defined undue burdens as regulations that set a substantial obstacle in the way of a woman seeking an abortion prior to fetal viability. Planned Parenthood filed the original lawsuit in response to the Pennsylvania legislature amending its abortion control laws to require parental consent in the case of minors, marital consent in the case of married women, informed consent, and a 24-hour waiting period.209 Planned Parenthood of Southeastern Pennsylvania sued the governor of Pennsylvania, Robert Casey, before these laws took effect. The court did not find these restrictions as undue burdens, except for spousal notification. While still upholding the right to abortion prior to fetal viability established in Roe, Planned Parenthood v. Casey reestablished the trimester-based framework for regulations and replaced it with the framework of fetal viability. While subsequent cases following Planned Parenthood v. Casey have focused on the undue burdens that regulations impose, the role of fetal viability as a framework for abortion regulation has not changed. Fetal viability can be defined as the stage of a fetus when it has reached the capability to live in normal conditions outside the uterus. It is important to note that viability “exists as a function of biomedical and technological capacities, which are different in different parts of the world.”210 Fetal viability is not an intrinsic property of the fetus, nor is it a function of the mother’s autonomy.

III. MEDICAL AND LEGAL UNDERSTANDINGS OF VETAL VIABILITY

The question of the beginning of a fetus’ life is greatly debated in both medical and legal understandings of fetal viability. In the medical sense, viability is “the point at which there is a reasonable probability that a fetus could survive ex utero when provided with care.”211 Medical professionals developed this term to determine whether premature fetuses would require intensive care from physicians. Nevertheless, fetal viability has not come to represent the gestational age at which a fetus becomes independent life. Roe v Wade established fetal viability at 28 weeks. Planned Parenthood v Casey preponed it to 23 to 24 weeks. And in Planned Parenthood v Danforth, the Supreme Court found the definition of fetal viability as “the state of fetal development when the life of the unborn child may be continued indefinitely outside the womb by

207 Supra encyclopedia britannica. 208 Planned Parenthood of Southeastern Pennsylvania v. Casey, Oyez, https://www.oyez.org/cases/1991/91-744 (last visited Mar 3, 2022). 209 Brian Duignan, Planned Parenthood of Southeastern Pennsylvania v. Casey, Encyclopedia Britannica (Jun. 19, 2016) https://www.britannica.com/event/Planned-Parenthood-of-Southeastern-Pennsylvania-v-Casey. 210 G H Breborowicz, Limits of Fetal Viability and Its Enhancement, PubMed, Jan. 5, 2001, abstract. 211 Elizabeth C. Romanis, Is ‘viability’ viable? Abortion, conceptual confusion and the law in England and Wales and the United States, Volume 7, Issue 1, Journal of Law and the Biosciences, 1, 4 (2020).

natural or artificial life supportive systems” to be consistent with the ruling in Roe. 212 In Planned Parenthood v. Danforth, the Supreme Court resisted attaching a specific gestational age to fetal viability as it did in Roe v. Wade. Instead, the Supreme Court acknowledged fetal viability as a function of a multitude of medical and technological factors. The court rejected the responsibility of placing viability at a specific gestational age. As technology rapidly changes, the function of fetal viability changes exponentially with medical innovation resulting in improved healthcare. There is no consensus on when a fetus transforms from a terminable organism to an interminable human life. Advocates for abortion rights, advocates for abortion regulation, scientists, and religious groups all have arguments about when life begins. Neither the United States Supreme Court nor has any federal law fixed fetal viability to a specific gestational time or fetal capability. This has allowed states to define viability themselves, allowing for more restrictive abortion regulations as fetal viability is assumed to occur earlier in gestational age. Some states interpret this to determine fetal viability as they wish. These state-based regulations regarding fetal viability fall into one of three categories: the capacity of or features of the fetus, viability as a medical judgment, and viability at a fixed gestational age. Most states recognize that the ex-utero life for a viable fetus includes both natural and artificial life support. However, many states do not specify for how long these fetuses must be able to survive in an ex-utero capacity. Some states continue to define viability as a specific gestational age. Other states continue to use the trimester framework and prohibit abortion after the second trimester. This discontinuity among legislative bodies extends overseas, creating an international conundrum regarding fetal viability.

IV. THE ROLE OF FETAL VIABILITY AS A REGULATOR OF ABORTION LEGISLATION IN THE UNITED STATES

Allowing states to choose their definitions of fetal viability may cause concern for the nature of fetal viability itself. When measuring fetal viability, most regulations solely concern the fetus’ survival rather than its ability to have a meaningful life. Fetuses can survive from as early as the ages of 21-22 gestational weeks,213 but that is not without significant risks to their long-term health. Fetal viability is an ambiguous framework, one that has been further complexified through medical innovation and may continue to change dramatically in the future. With continued advancement in neonatal care, states can continue to prepone their methods of regulation abortion at the risk of pregnant women.

A. Texas Abortion Legislation: The Texas Heartbeat Act

The state of Texas has chosen to define viability at the point of a fetal heartbeat. The law, commonly referred to as SB8 or The Texas Heartbeat Act, took effect on September 1, 2021, and makes it a criminal act for physicians to perform or induce an abortion once a fetal heartbeat can

212 Pro Romanis.

213 Greg Stohr, Fetal Viability and the Fate of Abortion Laws in the U.S., Bloomberg (Dec. 2, 2021, 12:19 PM) https://www.bloomberg.com/news/articles/2021-12-02/fetal-viability-and-the-fate-of-abortionlaws-in-us-quicktake.

be detected.214 A fetal heartbeat or cardiac activity may be detectable as early as six weeks into pregnancy. Physicians may not perform an abortion after a fetal heartbeat has been detected unless in cases of medical emergencies. The law makes no provision for cases of rape or incest. The Texas Heartbeat Act is only enforceable through private civil actions,215 restricting enforcers to non-state officials. The Texas Heartbeat Act employs private citizens to sue anyone who: performs or induces an abortion, aids and abets the obtainment of an abortion, pays for an abortion, or intends to perform or aid and abet the performance of an abortion in violation of the Texas Heartbeat act. Private citizens may not sue the pregnant person but may sue their healthcare provider and anyone who might accidentally or intentionally aid and abet them. Private citizens or claimants who are successful in their suit may claim no less than $10,000 in damages for each abortion performed.216 Defendants, even those found innocent, are prohibited from being awarded costs or attorney’s fees as is customary in civil cases. The Department of Justice filed a lawsuit to prevent the State of Texas from enforcing SB 8, protesting its violation of both the Supremacy Clause and the Fourteenth Amendment. When considering viability regarding the Texas Heartbeat Act, it is necessary to recognize that the law interprets viability through a fetal heartbeat. The Texas heartbeat act uses “heartbeat as an indicator of life and therefore personhood” in an “attempt to create a new class of persons — fetuses in utero — entitled to legal protection.”217 The fundamental argument behind heartbeat legislation is that a fetal heartbeat indicates intrinsic life within the fetus. However, a fetal heartbeat is not truly an indicator of life for an unborn fetus. At the six-week gestational age mark, medical professionals can make no definitive conclusions about the health of the offspring or the mother. By setting the gestational age limit so early, the Texas legislation prevents mothers from marking informed decisions for their health and their offspring’s health. Miscarriages, detections of fetal abnormalities, or other medical complications may arise after detecting a fetal heartbeat. SB8 strives to paint a picture of a viable offspring at six weeks, which may not be the case. In fact, at six weeks of gestational age, a fetus cannot be medically referred to as a fetus but is more correctly categorized as an embryo. Medical definitions classify the stage at six gestational weeks as an embryo. The embryo may not be considered a fetus until eight weeks of gestational age. Misleadingly named a fetal heartbeat, the heartbeat in question may not be medically classified as a heartbeat.218 Specifically, the Texas law defines a fetal heartbeat as cardiac activity or the repetitive rhythmic contraction of the fetal heart. However, an ultrasound machine can detect “fetal heartbeat” at six gestational weeks. However, the sound heard by

214 Joanna R. Lampe & Jon O. Shumabukuro, The Texas Heartbeat Act (S.B. 8), Whole Woman’s Health v. Jackson, and United States v. Texas: Frequently Asked Questions, Congressional Research Service, Oct. 25, 2021, 1, 1. 215 Id. 216 Lampe and Shumabukuro, supra. 217 Dabney P. Evans & Subasri Narasimhan, A Narrative Analysis of Anti-Abortion Testimony and Legislative Debate Related to Georgia’s fetal ‘heartbeat’ ban”, Informa UK Limited, Dec. 28, 2020, 1, 1-2. 218 Selena Simmons-Duffin and Carrie Feibel, The Texas Abortion Law Hinges on ‘Fetal Heartbeat.’ Doctors Call That Misleading, NPR (September 3, 2021, 3:14 PM), https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-amedical-term-but-its-still-used-in-laws-on-abortion.

pregnant women at the time of their six-week ultrasound is not the fetus’ heartbeat as the law may suggest. Medical consensus indicates that the embryo, not the fetus, does not have a functioning heart or cardiovascular system at six weeks of age. Rather the sound picked up and amplified by the ultrasound machine is electrical activity emitted by the cell clump that makes up the embryo. Brazen misinterpretation and misleading jargon culminate in creating an unconstitutional and deceptive law. The Texas Heartbeat Act may lead women to believe that their embryo has a heartbeat at six weeks, thus interpreting it as a sign of life. Knowing the financial repercussions of pregnancies for women who wish to terminate them, this misleading legislation serves as a forced restriction on a woman's reproductive rights.219 Texas’ abortion law provides a clear case study of how the current abortion regulation framework of fetal viability fails to protect women’s reproductive rights. The law misleads women about their potential health, their offspring’s possible health, and the viability of their offspring at a given point in time. Texas has successfully been able to almost completely outlaw abortion in the state under the guise of the current framework to regulate abortion. The short time a woman may legally obtain an abortion functionally prevents most abortions, regardless of medical considerations. The failure of the existing framework’s ability to protect women’s reproductive rights in Texas underlines the need for a fundamental change in framework.

B. Mississippi Abortion Legislation: The Mississippi Gestational Age Act

Another state challenging the status quo of legalized abortion is Mississippi. Mississippi has set its abortion ban at 15 weeks of gestation, which may seem reasonable compared to Texas’ Heartbeat Act. However, Mississippi’s law sets its ban at almost ten weeks before the medical definition of fetal viability. The Mississippi Gestational Age Act (HB 1510) only allows abortions after 15 gestational weeks for medical emergencies or severe fetal abnormalities. Similar to that of Texas, the law makes no exceptions for cases of rape or incest220 . The only abortion clinic in the state of Mississippi is the Jackson Women’s Health Clinic. On the day that Mississippi Gestational Age Act was set to enter into effect, Jackson Women’s Health Organization immediately challenged its legality.221 The law has not yet gone into effect in Mississippi, as a federal court blocked its enforcement.222 Soon to be heard by the US Supreme Court, the case Dobbs v. Jackson Women’s Health Organization would test the constitutionality of abortions performed prior to fetal viability. The state of Mississippi, represented by the named petitioner Dobbs, is asking for the court to overturn Roe v. Wade and Planned Parenthood v. Casey and rewrite the standard for abortion regulations in the Country. The Mississippi Gestational Age Act does not even attempt to provide the illusion of attributing the 15 weeks of gestational age to fetal viability. The law estimates that 15 weeks of

219 Simmons-Duffin and Feibel, supra. 220 Jenny Gathright, Mississippi Governor Signs Nation’s Toughest Abortion Ban Into Law, NPR, (March 19, 2018, 6:44 PM), https://www.npr.org/sections/thetwoway/2018/03/19/595045249/mississippi-governor-signs-nations-toughest-abortion-ban-into-law. 221 Tori Staley and Jenny Guo, Dobbs v. Jackson Women’s Health Organization, Cornell Law School, https://www.law.cornell.edu/supct/cert/19-1392. 222 Adeel Hassan, What to Know About the Mississippi Abortion Law Challenging Roe v. Wade, The New York Times, (December 1, 2021), https://www.nytimes.com/article/mississippiabortion-law.html.

gestational age is when a fetus begins to take human form.223 Mississippi showcases a blatant disregard for the current framework, articulating a case of ignoring federal law and fetal viability. The altered appearance of the fetus does not alter the fetus’ ability to survive outside the womb nor separate itself further from the mother in any meaningful way. More arbitrary than the line of fetal viability, the Mississippi law chooses a random point in gestation to begin to ban abortion. The arbitrary nature in which this time limit was chosen represents the wish of certain states to simply just ban abortion, with a smaller amount of consideration given to the scientific practicality of their reasoning. The job of legislative bodies does not include making medical decisions for its constituents but rather protecting their rights. The Supreme Court must implement an improved framework to prevent states from superimposing federal law to protect women's reproductive rights.

C. Oklahoma Abortion Legislation

In an attempt to set a new extreme, on March 22 of 2022, the Oklahoma House passed a bill that would completely ban abortion in the state. Emboldened by the unrestrained legislation in Texas, Oklahoma has modeled its bill after the Texas Heartbeat Act. The bill prohibits all abortions in the state, with no exceptions other than for the mother's life. The bill notably lacks any exceptions for cases of rape or incest, setting an oppressive burden upon victims. Furthermore, the bill lacks any forms of exceptions for fetal abnormalities or disabilities. Moreover, in line with Texas’ bill, the bill employers private citizens to sue abortions seekers, abortion providers, and all those who may aid and abet an abortion seeker for damages up to $10,000.224 The bill also stipulates that defendants being sued under this law cannot argue the bill's unconstitutionality in their defense.225 Oklahoma is following the lead of Texas in creating laws meant to rob the people of justice through deception and cruel manipulation of the legal and judicial system of the United States. This radical bill follows a 2,500% increase of Texas patients in Oklahoma Planned Parent clinics.226 Oklahoma’s total ban on abortion represents a draconian take on regulating abortion. States do not have the right to completely outlaw freedoms entitled to their constituents. Oklahoma does not even attempt to circumvent the current framework as Texas and Mississippi did but instead throws the current framework out the door to establish its own.

223 Katherine Klein, The Gestational Age Act and the Nationwide Fight Against Reproductive Health, The American Civil Liberties Union Mississippi, (February 15, 2018, 11:00 AM), https://www.aclu-ms.org/en/news/gestational-age-act-and-nationwide-fight-against-reproductivehealth. 224 Andy Rose and Veronica Stracqualursi, Oklahoma state House passes near-total ban on abortion, to be enforced through civil action, CNN Politics, (March 23, 2022, 10:19 AM), https://www.cnn.com/2022/03/23/politics/oklahoma-house-near-total-abortion-ban/index.html. 225 Shawna Chen and Oriana Gonzalez, Oklahoma House clears near-total abortion ban, Axios, (March 22, 2022), https://www.axios.com/abortion-ban-oklahoma-house-d62be888-5d9e-44699098-63b7f4b2160e.html.

226 Oriana Gonzalez, Texans overwhelmingly traveled out-of-state to get abortions after ban took effect, AXIOS, (March 5, 2022), https://www.axios.com/texas-abortion-ban-planned-parenthoodroe-79b70317-8b2a-4d8a-aa3c-e98c03c5ed1b.html.

The historical analysis suggests that as states outlaw abortion, it will not stop but only become more dangerous. As conservative legislatures continue to repeal freedoms and civil liberties in the United States, the need for a more fundamental and systematic change is evident. The blatant disregard of the current framework exemplifies the will and ability of conservative states to disregard the federal legislative framework as they please. Any framework created may be manipulated or disregarded, stressing the need to overhaul all federal abortion regulations. The only way to protect women’s reproductive rights is to deregulate abortion completely.

V. INTERNATIONAL USAGES OF FETAL VIABILITY AS A REGULATOR OF

ABORTION LEGISLATION

Analyzing international approaches to abortion regulation provides valuable insight into the practicality of different regulators of abortion legislation. Pregnancy is a global constant, and social practices regarding abortion are comparable in high-income countries. However, international standards of fetal viability vary by medical definition. Examining different countries' definitions of fetal viability allows for a comparative understanding of fetal viability and its importance in abortion regulations. Internationally, a different set of regulations for abortion is prevalent. Canada, China, South Korea, Vietnam, and Australia allow abortion to be broadly legal with no explicit gestational limit. The United States, Great Britain, the Netherlands, and Singapore all technically allow for abortion until the point of fetal viability. Overall, there has been a movement toward more liberalized abortion laws, with countries moving to decrease their number of regulations and even completely legalize abortions where it was previously illegal. Only three countries since 1994 have moved to restrict abortion even further. States like Texas, Florida, and Mississippi are among Nicaragua, Poland, and El Salvador in their quests to limit female reproductive rights.227 While some countries may have gestational limits on abortion, it is still accessible after this timeframe passes. Germany, for example, allows for abortion by request until 12 weeks of gestational age, seemingly more restrictive than Mississippi's ban. However, in Germany, a woman may obtain an abortion up until 22 weeks if she believes it necessary for her mental or physical health or present or future living conditions. 228

A. Irish Abortion Regulation

The Republic of Ireland has moved from a total ban on abortion to a partial ban. The comparison of Ireland to America shows one country moving forwards while the other moves backward in terms of female reproductive rights. The Republic of Ireland’s abortion regulation may compare to the Mississippi legislation but is still laxer than Texas’. In December of 2018, the Regulation of Termination of Pregnancy Act passed in Ireland allowing for abortion on request until 12 weeks of gestation. After 12 weeks of gestation, abortion is still obtainable in cases of risk

227 Daniela Santamariña, Youjin Shin, Sammy Westfall, and Ruby Mellen, How abortion laws in the U.S compare with those in other countries, THE WASHINGTON POST, (September 27, 2021), https://www.washingtonpost.com/world/interactive/2021/us-abortion-laws-worldwide/. 228 Claire Cain Miller and Margot Sanger-Katz, On Abortion Law, the U.S. Is Unusual. Without Roe, It Would Be, Too., THE NEW YORK TIMES, (Janurary 22, 2022), https://www.nytimes.com/2022/01/22/upshot/abortion-us-roe-global.html.

to the life or health of the mother or a severe fetal anomaly.229 Prior to the referendum allowing the passing of the new act, abortion seekers and those who helped a person obtain an abortion could face criminal penalties. The new act maintains criminal penalties for those who aid an abortion seeker in obtaining an abortion after 12 weeks of gestation but does not impose criminal penalties upon the abortion seeker themselves. Once abortion services became available in Ireland, the Irish Department of Health found that 6,666 abortions had taken place in Ireland, with 98% of those abortions taking place prior to the 12-week gestational limit.230 Before the Regulation of Termination of Pregnancy Act in Ireland, abortion was illegal with criminal penalties. However, allowing for abortion was a critical step to allowing women access to “self-determination and bodily integrity” by providing “safe, legal, and local abortion.”231 Unfortunately, while Ireland seems to be moving forward and increasing access to abortion, states within the United States of America seem to be moving to decrease access. The cognitive dissonance brought upon by contradictory international regulations regarding abortion can be addressed by analyzing Ireland's current state of care. Abortion may be legally accessible in Ireland, but it is still inaccessible to those who require it. Due to legal and non-legal barriers, access to abortion in Ireland does not meet the standard of accessibility for the women who need it. Non-legal barriers to abortion continue to exist in Ireland, with the availability of abortion limited because most of the abortion providers in Ireland only provide abortion up until ten weeks of gestation, rather than the 12 weeks of gestation prescribed by the law.232 Ireland also imposes a three-day waiting period for abortion-seekers. After 12 weeks of pregnancy, women must undergo “unworkable and arbitrary standards for termination,” needing agreement from two specialist medical practitioners who attest that the fetus will die before or within 28 days of birth. Abortion is also geographically uneven throughout Ireland due to obstructive doctors. Although the 12-week abortion law may seem conservative and stringent compared to more liberal American states, the move to increase access to reproductive rights in Ireland must be acknowledged and celebrated.

B. Comparison of the United States to Other High-Income Countries

Like the United States, both Great Britain and the Netherlands use fetal viability as the point from which abortion is widely prohibited. The Netherlands defines fetal viability as a gestational age of 2 weeks and provides abortions to women up until 14 weeks from their last menstrual period. The Netherlands still requires a five-day waiting period before a woman can access abortion and requires a parent or guardian’s consent for minors under 18, except in exceptional circumstances.233 The Netherlands has an extremely low incidence of abortion due to two key factors inherent to Dutch society.234 Dutch healthcare's free and readily accessible family

229 Sydney Calkin and Ella Berny, Legal and non-legal barriers to abortion in Ireland and the United Kingdom, MA@POC, July 30, 2021, at 1, 1-7. 230 Id. 231 Id. 232 Calkin and Berny, supra. 233 The Netherland: New 2020 Data, ABORT REPORT, (2020), https://abortreport.eu/netherlands/. 234 Evert Ketting and Paul Schnabel, Induced Abortion in the Netherlands: A Decade of Experience, 1970-80, 11. STUDIES IN FAMILY PLANNING 385, 385-394 (1980)

planning services allow the percentage of sexually active Dutch men and women using reliable contraceptive methods to be very high.235 In addition, Dutch society has an open attitude towards sexuality, allowing for effective contraception usage. Dutch society views abortion as something to be avoided rather than prohibited.236 The United Kingdom, on the other hand, sets the gestational limit for abortions to be 24 weeks. Abortions provided after the 24 age mark require the mother’s life to be at risk or for the fetus to have a severe disability if the pregnancy were to continue. Abortions may be kept confidential at the patient’s request, and no parental notification is required for minors. The Infant Life Preservation Act of 1929 designates willful destruction of a “fetus capable of being born alive” as a criminal offense. The Abortion Act of 1967 is what sets 24 weeks as the limit for termination to be a lawful and provided defense for medical professionals provided after 24 weeks if there is clear proof of the danger of “grave permanent injury” to the health of the woman or substantial risk of abnormalities to the fetus. These laws recognize an implicit viability threshold of fetal viability by defining it in terms of gestational age.237 The law disregards medical reality and opinions by defining fetal viability at 24 gestational weeks. However, the definition of viability as a “fetus capable of being born alive” does not address the capacity of being born alive. The case C v S238 in the civil division of Great Britain’s Court of Appeals provided further clarification on the capacity of fetal life under the Infant Life Preservation Act. The court ruled that fetal movement did not qualify as the capacity to be born alive. Instead, the court stipulated that “a fetus was capable of being born alive only if it could breathe after birth with or without a ventilator. In a later case, the court suggested that viability depended on the fetus’s ability to live “through its own lungs,” without the dependence of “its living or power of living through any connection with its mother.”239 Being born alive under English law seems to rely upon the fetal ability to breathe. However, there is no requirement for the ability to breathe for a certain time after birth, implying that simply surviving birth with the ability to breathe is enough to claim viability. Furthermore, the law does not distinguish how long after the birth the child needs to be able to breathe. This ambiguous English law defines fetal viability as “being born alive and surviving for a time by breath, rather than being born alive and surviving in the longer term.”240

C. Timeframe of Abortion Performances Compared to the Legal Gestational Age Limit in

High-Income Countries

A peer-reviewed observational study by the British Medical Journal of Sexual and Reproductive Health examined the distribution of abortions by method and gestational age in twenty-four high-income countries with liberal abortion laws. In most countries studied, 90% of abortions occurred within the first 13 weeks of gestation, and over two-thirds of all abortions took

235 Id. 236 Id. 237 Supra Romanis. 238 C v. S (1987) [United Kingdom Court of Appeals]. 239 Pro Romanis. 240 Pro Romanis.

place before the first nine weeks of abortion.”241Specifically, in the Netherlands, 18% of abortions occurred after 13 weeks. In Norway, Finland, Sweden, England, and Wales, 72% of all abortions occurred before nine weeks of gestation. The method of abortion also may affect the gestational age at which an abortion may occur. Countries like Scotland, Singapore, France, and Italy employ mandatory waiting periods ranging from 28 hours to a week. Mandatory waiting periods increase the gestational age at which abortions may occur, possibly limiting a women’s access to abortion. Medical professionals recommend medical abortions or medication abortions to be performed prior to 9 weeks of gestational age. This recommendation of gestational age for the medical procedure could explain the high international rates of abortion prior to nine gestational weeks. Over two-thirds of abortions in Northern European countries are medication abortions. In sharp contrast, 81% of abortions performed in Italy are surgical abortions. Yet, in all the countries studied, there has been an upwards trend in the usage of medication abortion as the most common form of abortion within that country. In the Netherlands, where abortion is accessible until fetal viability, only 5.1% of Dutch women who had an abortion obtained at 13 weeks of gestation or after. However, non-Dutch women constituted 72% of the abortions in the Netherlands after 13 weeks.242 According to the Center for Disease Control’s Abortion surveillance in 2019, 92.7% of abortions occurred between 13 weeks of gestation.243 Most abortions occur well before the 13week mark, internationally in other high-income countries and the United States. As most abortions occur so early in gestation in both the United States and other high-income countries, the question remains why abortion bans at 15 weeks, such as in Mississippi, are so controversial.

VI. CONCLUSION

With fetal viability as the central point in the debate on the regulation of abortion in the United States, it is crucial to reassess its importance as a metric in the scope of both pregnancy and abortion regulation. Despite being a critical medical concept, there is no agreed-upon gestational capability nor gestational age that can be pinpointed as the point at which a fetus becomes viable. An ambiguous, undefined notion of fetal viability only moves earlier into pregnancy as medical technologies continue to advance. Furthermore, using fetal viability as a benchmark for regulation allows for medical misappropriation, as in the case of heartbeat bills, and promotes the ambiguity present in Mississippi's 15-week ban. Fetal viability should not be the determiner of abortion regulation. However, the new regulation structure of abortion in the United States of America rests in the hands of the United States Supreme Court. The court's decision in the case of Dobbs v. Jackson Women’s Health will redetermine the role of fetal viability as the sole federal regulator of abortion law. As the Supreme Court becomes an increasingly politicized body, the outcome of cases may

241 Anna Popinchalk and Gilda Sedgh, Correction: Trends in the method and gestational age of abortion in high-income countries, BMJ SEXUAL & REPRODUCTIVE HEALTH 1, 1-10 (2019). 242 Pro Popinchalk and Sedgh. 243 Katherine Kortsmit PhD, Michele G. Mandel, Jennifer A. Reeves MD, Elizabeth Clark MD, H. Pamela Pagano DrPH, Antoinette Nguyen MD, Emily E. Petersen, MD, Maura K. Whiteman PhD, Abortion Surveillance — United States, MMWR SURVEILL SUMM, 2019, 1, 1-29.

not be absolutely predeterminable but allows for understanding the court's intentions and attitudes to more controversial, polarizing political issues. In the Dobbs v. Jackson Women’s Health case, the court's role is to review whether all pre-viability prohibitions on elective abortions are unconstitutional. The state of Mississippi contends that Roe v. Wade is outdated and prevents Mississippi from protecting both unborn and maternal lives. The conservative majority on the Supreme Court suggests that the outcome of Dobbs v. Jackson Women’s Health is that the court will legalize either some or all pre-viability abortion regulation or establish a new framework for abortion regulation. An analysis of international attitudes towards abortion regulators details a picture of a move towards increased access to abortion. Ireland most clearly depicts this phenomenon, despite its history of religious opposition to abortion. The United Kingdom takes a different approach by precisely defining fetal viability and preventing ambiguity in its framework. Other high-income countries such as the Netherlands may set limits on abortion earlier than fetal viability but allow for greater access to health access and care than the United States. An overall constant is the timeframe of abortions. 90% of abortions happen within the first 13 weeks of gestation, well before fetal viability. This international analysis reinforces that fetal viability is a flawed indicator for legislative processes. This paper posits that fetal viability should not be the regulator of abortion legislation in the United States. The vast majority of abortions occur prior to viability, urging political actors against abortion to move up the viability line as much as possible. As long as fetal viability remains even a determinant in the legislative process regarding abortion, the danger of severely restricting if not making abortion inaccessible to women remains. On a legal basis, the Supreme Court cannot continue to allow fetal viability to be the regulator of abortion legislation. Instead, this paper argues for a complete overhaul of all federal abortion regulations. The federal government should not regulate abortion. Moral questions regarding abortion stem from the expulsions of viable fetuses, yet most abortions happen prior to fetal viability. Any form of federally established framework is subject to partisan squabbles, undermining women’s rights to their reproductive health. The only way to protect the right to abortion in America is to deregulate it completely