Page:Dobbs v. Jackson Women's Health Organization.pdf/60

This page has been proofread, but needs to be validated.

52

DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION

Opinion of the Court

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 the 32d or 33d week of pregnancy or even later.^[1] When Roe was decided, viability was gauged at roughly 28 weeks. See 410 U. S., at 160. Today, respondents draw the line at 23 or 24 weeks. Brief for Respondents 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? And if viability is meant to mark a line having universal moral significance, can it be that a fetus that is viable in a big city in the United States has a privileged moral status

↑ See W. 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., at 326 (“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 a 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. Baker, The Incubator and the Medical Discovery of the Premature Infant, J. Perinatology 322 (2000) (explaining that, in the 19th century, infants born at seven to eight months’ gestation were unlikely to survive beyond “the first days of life”).

[1] See W. 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., at 326 (“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 a 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. Baker, The Incubator and the Medical Discovery of the Premature Infant, J. Perinatology 322 (2000) (explaining that, in the 19th century, infants born at seven to eight months’ gestation were unlikely to survive beyond “the first days of life”).

[1]