Gonzales, Casey and the Viability Rule

INTRODUCTION 249 I. WHY EXPECT A RATIONALE FOR THE VIABILITY RULE? 253 A. Casey's Test of Legitimacy 254 B. The Moral Randomness of the Viability Standard. 257 C. Viability in International Perspective 261 II. THE SUPREME COURT'S FAILURE TO JUSTIFY THE VIABILITY RULE 267 A. The Missing Syllogism of Roe v. Wade 268 B. The Ambiguous and Conclusory Syllogism o/Planned Parenthood v. Casey 271 C. Justifying the Viability Rule After Gonzales v. Carhart 276 CONCLUSION 279 INTRODUCTION For more than a third of a century, United States courts have vigorously applied a seemingly arbitrary rule, one never justified in either legal or moral terms. Since Roe v. Wade, the Supreme Court has maintained that the right to abortion continues until fetal "viability," the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid."1 This Essay questions the constitutional justification for the viability rule, particularly in light of the Court's recent decision in Gonzales v. Carhart.2 The concept of viability first entered the Supreme Court's abortion jurisprudence as an element of Roe's now-abandoned "trimester framework," which evaluated abortion regulations based on the stage of pregnancy to which they applied.3 Roe concluded that the state interest in protecting fetal life becomes "compelling" - justifying substantial regulation or proscription of abortion - only at viability,4 a period then identified with the third trimester of pregnancy.5 This viability rule generated dissents in subsequent cases from Justices who considered the Court's line "arbitrary."6 Justice White, for example, maintained that "the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant."7 Nearly two decades after Roe, the controlling opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey discarded the "rigid" trimester framework and substituted a more accommodating "undue burden" standard.8 The plurality, however, retained the rule that a state may not prohibit abortion prior to fetal viability,9 though with the recognition that medical advances had pushed viability to an earlier point in pregnancy than at the time of Roe}0 Justice Scalia labeled the plurality's defense of the viability rule "conclusory," highlighting an earlier opinion in which the plurality's Justice O'Connor had criticized viability as an arbitrary line.11 The viability rule once again emerged as a point of contention (though on different grounds) in Gonzales, the Court's most recent decision addressing the scope of abortion rights.12 The narrowly divided Gonzales Court rejected a facial challenge to the federal Partiai-Birth Abortion Ban Act of 2003. '3 While the majority assumed the applicability of the viability rule,14 it upheld a federal ban on the "intact dilation and evacuation" ("intact D&E") procedure that applied without regard to the stage of fetal development.15 Justice Kennedy explained that "[t]he Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. …