The Supreme Court Should Overturn Roe's Viability Standard | Opinion

With the U.S. Supreme Court's recent announcement that it will hear Dobbs v. Jackson Women's Health Organization, a case that reviews the constitutionality of Mississippi's 15-week abortion ban, the Court will consider a challenge to Roe v. Wade for the first time in 29 years.

In 1992's Planned Parenthood v. Casey—the last challenge to Roe—the Court connected Roe to Brown v. Board of Education, describing them as the only two cases in history in which the Court chose to intervene in a national controversy in hopes of granting a constitutional mandate that both sides could accept. Where Roe obviously failed to end the national controversy on abortion, Brown practically flipped Americans' opinions overnight and set the nation on a path toward complete rejection of segregation.

In 1954, the Court in Brown refused to follow its 1896 decision in Plessy v. Ferguson. The Court held that "the Plessy Court's explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justified but required." However, the Court ultimately said that Brown and Casey were incommensurable since it could find no reason to overturn Roe: "[N]either the factual underpinnings of Roe's central holding nor our understanding of it has changed."

While the facts underlying Roe might not have changed as of the Casey decision in 1992, the Court will once again have to consider whether the "facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application." In my recent article for the Tennessee Law Review, I identified two main areas in which the Court might find that the facts underlying Roe have so changed.

First, the Court in Roe recognized that states have an "important and legitimate" interest in protecting life. The Court considered the argument that this interest is compelling at fertilization—which would be the point in fetal development when it would be constitutionally permissible for a state to ban abortion—but rejected it after claiming that, at that point in our scientific knowledge, there was no consensus of experts who agreed on when a human's life begins. Today, that is no longer the case.

In 2019, I released the results of an international study on biologists' views as to when a human life begins. Ninety-six percent of 5,577 academic biologists from more than 1,000 institutions around the world affirmed that a human's life begins at fertilization. Eighty-five percent of those biologists identified as "pro-choice," yet they affirmed the simple, scientific fact that fertilization marks the beginning of the human life cycle and thus the beginning of a human's life. This view has been well accepted by the scientific community since it was first discovered in 1828 by German scientist Karl Ernst von Baer, the founding father of embryology.

Pro-Life Activist Stands Outside the Supreme Court
A pro-life activist holds a sign outside the U.S. Supreme Court during the 48th annual March for Life January 29, 2021 in Washington, DC. The court is set to hear a potential landmark case on abortion rights. Alex Wong/Getty Images

Second, the Roe Court suggested that "the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth." Today, there are at least eight different legal contexts in which fetuses are protected by law. In the context most directly related to abortion, a majority of states now have fetal homicide laws that recognize any non-abortive killing of a fetus as a homicide or murder at fertilization. Many of these laws were passed after Congress passed the Unborn Victims of Violence Act of 2004, which uses a sentencing enhancement for certain felonies to protect any "member of the species homo sapiens, at any stage of development, who is carried in the womb."

It is quite simple. The Plessy Court upheld race-based segregation because it believed the practice would not stamp African Americans with "a badge of inferiority." The Brown Court overturned Plessy by finding that "[s]eparate educational facilities are inherently unequal."

The Roe Court found that states could only protect fetuses at viability because, at the time, the Court did not know when life began and most states did not prosecute non-abortive fetal homicides. The Dobbs Court can overturn Roe's viability standard based on the fact that recent scientific and legal developments show that each successful abortion kills a human, and fetuses' lives and rights are now widely recognized and protected under law.

The Court now faces an important decision. It can either prop up the 48-year precedent of Roe by upholding a viability standard that no longer has any logical or biological justifications, or it can follow the 57-year precedent of Brown and reaffirm that the Court should update its standards and rulings when they are invalidated by new information.

The Court should follow the science and the precedent of Brown; it should finally overturn its incorrect, obsolete viability standard and stop infringing on states' 10th Amendment right, and 14th Amendment duty, to protect all humans throughout their lives, from fertilization until natural death.

Steve Jacobs is the program director of Illinois Right to Life. He received his J.D. from the Northwestern University School of Law and his Ph.D. from the University of Chicago.

The views expressed in this article are the writer's own.