Abortion Laws Treat “Viability” as a Bright Line. It Isn’t.
In 2021, Kate Dineen was standing in her kitchen in Boston when her doctor told her over Zoom that her son had experienced a catastrophic stroke in utero. There was only a 50 percent chance the baby would survive after birth, with zero chance of a healthy outcome. Dineen was devastated; she’d previously had a […]
In 2021, Kate Dineen received news from her doctor in Boston that her unborn son had suffered a severe stroke, with only a 50% chance of survival after birth. Dineen, who had previously experienced a miscarriage, decided alongside her husband to terminate the pregnancy, deeming it the best course of action to protect their son from a life of suffering.
However, Massachusetts law prohibited abortion after 24 weeks, a point known as fetal viability. Dineen learned that her situation did not qualify for an exception, as her baby's stroke was not considered "lethal." The concept of fetal viability, which marks the point at which the fetus has a reasonable chance of survival outside the womb, has long been a subject of controversy in the abortion debate.
Proponents of strict anti-abortion laws often use the term to argue for outright bans, while abortion advocates seek to protect the procedure up to this point. The term "viability" originated in the 1820s to describe a fetus's capability to live and inherit property, later expanded by a doctor to include the possibility of drawing breath.
Despite advances in medicine, determining viability remains a matter of probability rather than certainty, as factors such as gestational age, sex, genetics, and access to neonatal care all play a role. In the wake of the Supreme Court's 2022 decision to overturn Roe v. Wade, which granted states the power to regulate abortion, several states have enacted near-total bans, while others have sought to strike a compromise by enshrining a right to abortion until viability in their state constitutions.
However, critics argue that viability bans still enable the government to interfere in personal medical decisions, as women often consider multiple factors before making the choice to seek an abortion. In Kate Dineen's case, she was able to travel to Maryland, one of nine states where third-trimester abortions are legal, to terminate her pregnancy.
Upon returning home, she joined forces with reproductive rights advocates to advocate for a change in Massachusetts law, ultimately leading to the elimination of the viability line and the allowance of later abortions without strict restrictions.
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