Opinion of the Court
not enjoyed by an identical fetus in a remote area of a poor country?
In addition, as the Court once explained, viability is not really a hard-and-fast line. Ibid. A physician determining a particular fetus’s odds of surviving outside the womb must consider “a number of variables,” including “gestational age,” “fetal weight,” a woman’s “general health and nutrition,” the “quality of the available medical facilities,” and other factors. Id., at 395–396. It is thus “only with difficulty” that a physician can estimate the “probability” of a particular fetus’s survival. Id., at 396. And even if each fetus’s probability of survival could be ascertained with certainty, settling on a “probabilit[y] of survival” that should count as “viability” is another matter. Ibid. Is a fetus viable with a 10 percent chance of survival? 25 percent? 50 percent? Can such a judgment be made by a State? And can a State specify a gestational age limit that applies in all cases? Or must these difficult questions be left entirely to the individual “attending physician on the particular facts of the case before him”? Id., at 388.
The viability line, which Casey termed Roe’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line.[1] The Court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the States less freedom to regulate abortion than the majority of western democracies enjoy.
d
All in all, Roe’s reasoning was exceedingly weak, and academic commentators, including those who agreed with the
- ↑ According to the Center for Reproductive Rights, only the United States and the Netherlands use viability as a gestational limit on the availability of abortion on-request. See Center for Reproductive Rights, The World’s Abortion Laws (Feb. 23, 2021), https://reproductiverights.org/maps/worlds-abortion-laws.
