Overcoming Barriers to the Protection of Viable Fetuses

Table of ContentsI. Introduction 1263II. The Requirement of Deference to Abortion Providers Virtually Ensures the Abortion of Some Viable Fetuses 1266III. Providers Sometimes Conceal Performance of Postviability Abortions 1277IV. Regulators in Some States Are Unwilling to Closely Supervise Abortion Providers 1282V. Measures That Could Help States Protect Viable Fetuses 1291VI. Conclusion 1295I IntroductionThe Supreme Court's abortion jurisprudence has recognized a compelling state interest in preserving the lives of viable fetuses.* 1 When acting to protect a "viable" fetus-one "potentially able to live outside the mother's womb, albeit with artificial aid"2-the state "may go so far as to proscribe abortion . . . except when it is necessary to preserve the life or health of the mother."3 Allowing relatively unrestricted abortion until fetal viability represents an extremely broad recognition of abortion rights by international standards.4 Only a handful of countries join the United States in permitting abortion for any reason until fetal viability or beyond.5 As Justice Blackmun recognized in a memorandum to Justice Powell, "[b]y that time [viability], the state's interest [in protecting fetal life] has grown large indeed."6In prior articles, I have critiqued the Court's failure to offer a plausible constitutional or moral justification for treating viability as the earliest point at which a state may significantly limit abortions.7 Viability varies from one fetus to the next based on factors that should be legally and morally irrelevant, including the progress and availability of neonatal treatment techniques, the race and gender of the fetus, the mother's altitude during gestation, and whether the mother smokes during pregnancy.8 It therefore seems difficult to explain why the state's interest in protecting fetal life would become significantly greater after the fetus crosses the viability threshold than before.9 Nor does fetal viability reduce the burden of pregnancy on the mother.10Setting those questions to the side, however, I start this Article from the premise that the Court was correct in Roe v. Wade11 concerning the significance of fetal viability. I assume for the sake of argument that viability is a momentous point in pregnancy and that "logical and biological justifications" support a compelling state interest in protecting the lives of fetuses that have crossed the viability threshold.12 The goal of this Article is to highlight factors that individually and in concert significantly hinder legislative attempts to preserve the lives of viable fetuses, and to identify measures that, if permitted by the courts, could facilitate the pursuit of this state interest.Part II of the Article argues that Supreme Court case law virtually guarantees that some viable fetuses will be aborted even though they could in fact survive outside the womb with proper care. The Court has required some level of deference to debatable viability predictions made by treating physicians, even if those predictions may be unduly pessimistic about the prospects for fetal survival.13 Part III notes that most abortions take place in private facilities operated by abortion providers, making it difficult to monitor the provider's compliance with a state law prohibiting postviability abortions.14 By way of illustration, I consider the investigation and prosecution of Philadelphia's Dr. Kermit Gosnell, which disclosed a number of techniques Gosnell employed to cover up the deaths of hundreds of viable fetuses and newborn infants over an extended period. …