Is 'viability' viable? Abortion, conceptual confusion and the law in England and Wales and the United States — TEI-tagged view

Elizabeth Chloe RomanispersName (2020date). “Is 'viability' viable? Abortion, conceptual confusion and the law in England and Wales and the United States.” Journal of Law and the Biosciencestitle·j.

Object of study — how viabilityterm·dom is featured, defined and quantified in abortionterm·key law in England and Wales and the USA

Research question — whether the legal conceptions of viabilityterm·dom in England and Wales and the USA are coherent enough to ground abortionterm·key regulation

Contribution — a comparative doctrinal analysis, tested on artificial wombterm·key technology and anencephalyterm·dom, showing that viabilityterm·dom is incoherent in law and a conceptually illegitimate basis for abortionterm·key regulation

Full text — tagged

The reference list is not part of the text we hold for this paper. Our copy was extracted from the publisher's page and the bibliography did not survive that extraction, so the article below ends before its references. Nothing has been removed by us.

Is 'viabilityterm·dom' viable? Abortionterm·key, conceptual confusion and the law in England and Wales and the United States Abstract In this paper, I explore how viabilityterm·dom, meaning the ability of the fetusterm·dom to survive post-delivery, features in the law regulating abortionterm·key provision in England and Wales and the USA. I demonstrate that viabilityterm·dom is formalized differently in the criminal lawterm·key in England and Wales and the USA, such that it is quantified and defined differently. I consider how the law might be applied to the examples of artificial wombterm·key technology and anencephalic fetusesterm·dom. I conclude that there is incoherence in the meaning of viabilityterm·dom and argue that it is thus a conceptually illegitimate basis on which to ground abortionterm·key regulation. This is both because of the fluidity of the concept and because how it has been thus far understood in the law is unsupported by medical realities. Furthermore, it has the effect of heavily diluting pregnant people’s rights with overly moralistic limitations on access to healthcare.

Keywords: abortionterm·key, artificial wombsterm·key, comparative lawterm·key, criminal lawterm·key, reproductive health, viabilityterm·dom I. INTRODUCTION The status of human entities before birth has been a subject of debate for centuries and remains highly contested. In need of a pragmatic answer, the law in many jurisdictions has adopted a gradualist approach to abortionterm·key regulation and provision. Viabilityterm·dom has, thus, become an important feature of the law. Viabilityterm·dom is ‘the ability [of a developing fetusterm·dom] to survive independent of a pregnant woman’s womb’. 1 In jurisdictions adopting this approach, abortionterm·key is lawful or accessed with less difficulty, before the point that a fetusterm·dom is deemed viable. After viabilityterm·dom, abortionterm·key is lawful in a narrower set of circumstances and/or harder to access. Gradualismterm·dom as grounds for determining the moral permissibility of abortionterm·key has been subject to heavy challenge in the philosophical literature. Viabilityterm·dom remains, however, enshrined as a legal concept in multiple jurisdictions, perhaps exemplifying the gap between moral reasoning and the law (which is inevitably more arbitrary). Lawmakers often paint viabilityterm·dom as a workable position somewhere between the demands of the anti-choice and the pro-choice campaigns found in the political landscape of England and Wales and the USA. The politicized labeling of viabilityterm·dom as a compromise is misplaced, however, because viabilityterm·dom limits access to healthcare. The meaning afforded to the concept of viabilityterm·dom in the law is therefore hugely impactful.

In this paper, I consider how viabilityterm·dom features, is defined, and is utilized in the law in England and Wales and the USA and whether these conceptions of viabilityterm·dom are legally coherent. The impact of viabilityterm·dom as a tool in legal regulation that limits access has been well explored. It is often argued that viabilityterm·dom should not be utilized as a legal metric to ground abortionterm·key rights. 2 In this paper, I consider the parameters of viabilityterm·dom as a legal concept, specifically how it has been both defined and quantified and its conceptual grounding. Most literature that criticizes the concept has not considered the mechanics of the concept in terms of how it is defined and instrumentalized. Since viabilityterm·dom is so entrenched in the law, we should have a clear understanding of its meaning that can be consistently articulated and be able to justify its inclusion as a legal standard. I demonstrate that while viabilityterm·dom is often described in a simple account of ‘the ability of a fetusterm·dom to survive after pregnancy’, the concept has been deployed, understood, and defined in vastly different ways in the USA and England and Wales. I argue that for viabilityterm·dom to be considered a coherent concept, it must have a rational and cogent basis that is consistent about what kind of life ex utero matters legally and can be consistently applied in different circumstances. I echo calls made by other scholars that it is inappropriate to ground regulation by reference to viabilityterm·dom; however, I do so by considering by what logics the particular legal regimes identified recognize viabilityterm·dom as a justifiable concept and standard of compromise in abortionterm·key law.

I compare the law in these two jurisdictions because, despite some economic and cultural similarities between them, they have different modern histories of abortionterm·key law, abortionterm·key politics, and systems of provision. 3 In the USA, abortionterm·key provision is in the hands of State legislatures that are subject to some restrictions by the Supreme Court, which has interpreted the Constitution, most notably in Roe v. Wade 4 and Planned Parenthood v. Casey , 5 to recognize that abortionterm·key is encompassed in the right to privacy. In England and Wales, no right to abortionterm·key is recognized, but Parliament has legislated to ensure medicalized access under certain circumstances. 6 Viabilityterm·dom features in both these frameworks to differing degrees. The US Supreme Court has been explicit that the right to abortionterm·key is limited by foetal viabilityterm·dom. In England and Wales, the statutory framework has, both directly and indirectly, the effect of ensuring access becomes more limited after foetal viabilityterm·dom. These jurisdictions are therefore useful points of comparison for examining the coherence of viabilityterm·dom because it is featured, defined, and quantified differently in both. 7 First, I demonstrate the extent to which viabilityterm·dom determines the legality, or provision, of abortionterm·key in both jurisdictions. Second, I test the concept of viabilityterm·dom that is contained in the law of each jurisdiction by considering its application to two specific cases: the development of artificial wombterm·key technology and anencephalyterm·dom. Artificial wombterm·key technology is of interest because such a development might challenge the viabilityterm·dom timeline by enabling the support of fetusesterm·dom ex utero much earlier in gestation. 8 Fetusesterm·dom with conditions incompatible with life such as anencephalyterm·dom are of interest because they allow investigation of the possibility that viabilityterm·dom is a rebuttable presumption later in gestation. I demonstrate that there are internal inconsistencies in the application of the law in these jurisdictions in how the law is applied to these two case studies. There are, therefore, problems in how viabilityterm·dom has been legally conceptualized and in implementing viabilityterm·dom as a feature of the law, resulting in inconsistency in the legal recognition afforded to fetusesterm·dom and in determining what kind of life matters ex utero . Finally, I argue that viabilityterm·dom is not a conceptually legitimate basis for abortionterm·key regulation.

II. THE ORIGINS OF VIABILITYterm·dom Before delving into the particularities of how viabilityterm·dom is both featured and articulated in the law in the USA and England and Wales, it is necessary to first explore the conceptual foundations of viabilityterm·dom as a concept.

The central role of gradualismterm·dom in theorizing about the fetusterm·dom has long been evident. Based on the work of physicians such as Hippocrates, who advanced a gradualist account of fetal formation and development, 9 Aristotle considered the moral significance of a fetusterm·dom as increasing with its development. His theory, centered on ‘ensoulment’, suggested that the embryo is a ‘vegetative soul’ potentially equivalent to that of plant life, but it attains a more sentient existence and soul as it attains a human shape—when the fetal body is formed and movement can be perceived. 10 The theory that ‘quickeningterm·dom,’ the moment that fetal movement is first perceived, marked a morally significant moment in fetal development persisted throughout the centuries featuring in the work of Thomas Aquinas 11 among others. These accounts focus, much like the modern conception of viabilityterm·dom, on identifying a particular feature of the fetusterm·dom’s capacities in order to isolate the point at which it can be thought of as a ‘living being’. The focus began shifting away from quickeningterm·dom to viabilityterm·dom in the late 19th century with advancing medical technology and increasing obstetrical knowledge. Viabilityterm·dom as a concept has its origins in the emergence of contemporary prenatal care. With the revelation of a design of a neonatal incubator at the World Exposition in 1896, 12 viabilityterm·dom became an increasingly important indicator as a matter of medical ‘pragmatic concern’ 13 in the context of prenatal care. Viabilityterm·dom is, in a medical sense, the point at which there is a reasonable probability that a fetusterm·dom could survive ex utero when provided with care. Primarily, the concept is utilized by clinicians in the context of spontaneous preterm delivery to determine whether the provision of intensive care is appropriate. 14 There is some extent to which the theory that viabilityterm·dom as the point at which the fetusterm·dom becomes deserving of some protection as a ‘living being’, and thus is a relevant consideration in the regulation of abortionterm·key, came to fruition as a form of political compromise. Lavi explains that this is because the concept is often presented as a ‘plain reality and a non-controversial development stage that any reasonable person would acknowledge’. 15 The logic being that ‘once the fetusterm·dom is viable, its status as a full-human being seems to be a self-evident truth. The viable fetusterm·dom no longer needs to become a full-human being; it is ready to begin to live an independent life’. 16 It therefore, seemingly, presents a position based on an exercise of logic, but that also allows pregnant people the chance to access abortionterm·key care up to a certain point, after which the fetusterm·dom is ‘entitled’ to certain protections. Later in this paper, I will review the significant criticism that is deployed against viabilityterm·dom as a morally significant moment in fetal development and criticize the extent to which viabilityterm·dom can be understood as a compromise in abortionterm·key regulation.

III. VIABILITYterm·dom IN THE LAW This section outlines how abortionterm·key provision is dependent upon determinations about viabilityterm·dom in England and Wales and the USA and makes some preliminary comparative observations.

A. England and Wales Under S.58 and 59 of the Offences against the Persons Act 1861, it is a crime for any person (including the pregnant person) to unlawfully procure a miscarriage. This crime can be committed at any point in gestation, irrespective of any perceived (in)capacities of the fetusterm·dom to survive ex utero . 17 The Infant Life (Preservation) Act 1929 created the offence of child destruction, committed when a person wilfully acts to intentionally destroy a fetusterm·dom capable of being born aliveterm·dom. 18 The Abortionterm·key Act 1967 (AA 1967) provides medical practitioners with a defence to these criminal offences in a proscriptive list of circumstances, the first of which is termed the ‘social ground for abortionterm·key’ and stipulates that termination is lawful if two doctors agree that ‘the pregnancy has not exceeded its 24 weeks and continuing the pregnancy would involve risk (greater than if the pregnancy were terminated) of injury to the physical or mental health of the pregnant woman or a existing children of her family’. 19 This does not provide pregnant persons with a right to pregnancy termination, because the AA 1967 is still framed in medical terms; termination can be provided before 24 weeks provided that the risk of continuing the pregnancy is greater than the risks of termination. However, this provision is so broad it renders ‘every pregnancy legally terminable within the first 24 weeks’. 20 This defence in the AA 1967 has installed an implicit viabilityterm·dom threshold. There are defences available for doctors performing abortionterm·key after 24 weeks; however, they are harder to establish and require ‘clear proof of the more serious danger specified’. 21 These grounds consist only of where the termination is necessary to prevent ‘grave permanent injury’ to the physical or mental health of the pregnant woman, where pregnancy is a greater risk to the woman’s life than termination, or where there is a substantial risk that the fetusterm·dom has serious abnormalities. 22 Because the defences available to a doctor to avoid criminal sanction after 24 weeks are narrower and framed in terms of greater severity, the AA 1967 appears to grant a limited ‘right to be gestated’ to fetusesterm·dom from 24 weeks. This is, of course, subordinate to pregnant people’s life and health, but notably the law distinguishes between the justifications for abortionterm·key before and after this point.

There is a more explicit reference to viabilityterm·dom in the offence of child destruction criminalizing the abortionterm·key of fetusesterm·dom capable of being born aliveterm·dom . The Infant Life (Preservation) Act 1929 (ILPA 1929) provides limited guidance on the meaning of capable of being born aliveterm·dom, other than to stipulate that reaching 28 weeks’ gestation was prima facie proof. This minimum threshold was subsequently lowered to 24 weeks. 23 Section 5 of the AA 1967 was amended in 1990 24 to specify that this offence is not committed when a medical practitioner conducts abortionterm·key in the circumstances outlined by the Abortionterm·key Act. It remains unclear whether the Abortionterm·key Act offers the more stringent protection to fetusesterm·dom only at 24 weeks and beyond, or whether fetusesterm·dom before 24 weeks are also encompassed if proof can be if they are capable of being born aliveterm·dom . It is possible to view the 24-week threshold as either fixing legal viabilityterm·dom to this point (regardless of whether this matches medical reality/opinion) or as a guideline marking the point from which viabilityterm·dom is legally assumed, but not necessarily precluding the recognition of younger fetusesterm·dom as viable.

The language used in the AA 1967 and ILPA 1929 is significant. There were ample opportunities for Parliament when drafting the AA 1967, or amending it in 1990, to specify that the AA 1967 24-week threshold was superseding a ‘capable of being born aliveterm·dom’ standard. It plausible, therefore, that capable of being born aliveterm·dom was intended to afford protection to some fetusesterm·dom before 24 weeks; preventing termination unless the grounds under the AA 1967 were met. Judges have interpreted ‘capable of being born aliveterm·dom’ in this way. In C v. S , 25 the Court of Appeal judgment afforded considerable time to considering medical evidence to ascertain whether an 18-week fetusterm·dom was capable of being born aliveterm·dom under the ILPA 1929. The legislative threshold is thus ‘only a presumption which relieves the prosecution of the burden of proving viabilityterm·dom’ after that point and ‘does not prevent proof that a particular fetusterm·dom is viable at an earlier stage in development’. 26 C v. S was decided before the 1990 amendments to the AA 1967 but demonstrates that there is potential for the viabilityterm·dom timeline to be shifted, increasing the scope for liability if there is not strict adherence to the defences in the AA 1967.

What is encompassed in the capacity to be born aliveterm·dom? In C v. S , Donaldson MR stipulated that a fetusterm·dom was capable of being born aliveterm·dom only if it could breathe after birth, with or without a ventilator. 27 In Rance , 28 Brooke J suggested a fetusterm·dom would be viable only when capable of ‘living through its own lungs alone, without deriving any of its living or power of living through any connection with its mother’. 29 English law clearly focuses on the capacity to breathe to establish viabilityterm·dom. In C v. S , Mr C claimed that capable of being born aliveterm·dom was a more restrictive legal concept than viabilityterm·dom; it need only be established that the fetusterm·dom could survive no more than birth. 30 It was held that being born at 18 weeks would result in little hope of survival, because there would be no capacity to breathe. This did not resolve the issue of whether the capacity to breathe only for a short time after birth would be sufficient, or whether the capacity would have to be more substantial (such as longer term use of the lungs). Intuitively, capable of being born aliveterm·dom is intended to convey a capacity to breathe for some reasonable time after birth. 31 The wording of the ILPA 1929 implies that the offence would be committed when a fetusterm·dom is delivered alive and breathes but does not live long after that. The presumption in the AA 1967 that a fetusterm·dom is capable of being born aliveterm·dom from 24 weeks gestation demonstrates Parliament’s intention to include fetusesterm·dom that once born may not survive in the longer term, given the usual prognosis of neonatesterm·dom born at this point in gestation, which would have been even worse 20 years ago when the threshold was made law. 32 Viabilityterm·dom in English law means capable of being born aliveterm·dom and surviving for a time by breathing, rather than being born aliveterm·dom and surviving in the longer term.

B. The USA In Roe v. Wade , the Supreme Court recognized that the constitutional right to privacy encompasses the right to terminate a pregnancy, but this right could be qualified by the state’s interest in potential life at fetal viabilityterm·dom. The right to abortionterm·key continues until the point a fetusterm·dom becomes ‘potentially able to live outside the mother’s womb, albeit with artificial aid’. 33 Blackmun J advanced a ‘trimester framework’ to separate different developmental phases in gestation and illustrate the differing levels of state interference that could be lawfully justified in each. Roe holds that ‘with respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viabilityterm·dom… if the State is interested in protecting fetal life after viabilityterm·dom, it may go so far as to proscribe abortionterm·key during that period, except when it is necessary to preserve the life or health of the mother’. 34 This point was identified as the third trimester of pregnancy. Nineteen years later in Casey , 35 the Supreme Court, while abandoning Blackmun’s trimester framework, reaffirmed ‘that viabilityterm·dom marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortionsterm·key’ emphasizing that ‘the attainment of viabilityterm·dom may continue to serve as the critical fact…’. 36 The Court replaced the trimester framework with the ‘undue burden’ test, holding that a law is unconstitutional if its ‘purpose or effect is to place substantial obstacles in the path of a woman seeking an abortionterm·key before the fetusterm·dom attains viabilityterm·dom’. 37 Pregnant people have the right to terminate pregnancy, as part of the constitutional right to privacy, until foetal viabilityterm·dom. Individual states must refrain from passing laws that unduly interfere with access to abortionterm·key until viabilityterm·dom. After viabilityterm·dom, States can pass whatever restrictions on abortionterm·key they see fit, expect that a pregnant person must still be able to access abortionterm·key if their pregnancy poses a serious risk to their health or life. This clear delineation by viabilityterm·dom begs the question about its definition. In Casey , viabilityterm·dom was defined as ‘the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection’. 38 It was observed that the precise point of viabilityterm·dom is dependent on medical technologies, and medical developments would come to re-determine the concept. 39 In Roe , fetal viabilityterm·dom was estimated at 28 weeks, though it was acknowledged that viabilityterm·dom could occur earlier. 40 Casey found that States could restrict abortionterm·key access from 23 to 24 weeks ‘or some moment even slightly earlier in a pregnancy’. 41 In Planned Parenthood v. Danforth , 42 the Supreme Court considered the constitutionality of a Missouri abortionterm·key statute, including its definition of viabilityterm·dom as ‘that state of fetal development when life of the unborn child may be continued indefinitely outside the womb by natural or artificial life supportive systems’. 43 This definition was found to be consistent with Roe because when a fetusterm·dom is viable, it would presumably be capable of ‘meaningful life outside the mother’s womb’ flexibly understood. 44 The Supreme Court resisted the claim that viabilityterm·dom was a concept that could be fixed to a particular point in gestation because ‘viabilityterm·dom was a matter of medical judgment, skill, and technical ability and [in Roe ] we preserved the flexibility of the term…. It is not the proper function of the legislature or the courts to place viabilityterm·dom, which essentially is a medical concept, at a specific point in the gestation period’. 45 The viabilityterm·dom threshold is thus seemingly dependent on technology, but ultimately on medical evidence and opinion with no discrete definition concerning the kind of independent existence of which a fetusterm·dom must be capable. Viabilityterm·dom is strongly tied to the notion of foetal independence from a pregnant person. Swyers warns that ‘assuming that medical science continues with the same momentum seen over the past two decades of advances in… postnatal care, a woman’s right to terminate her pregnancy under the current viabilityterm·dom standard may soon disappear’. 46 The Supreme Court’s refusal to quantify viabilityterm·dom means that States have been left to define viabilityterm·dom as they see fit, which has resulted in a multitude of approaches. Most State laws have ultimately followed the Supreme Court’s reasoning and maintained that viabilityterm·dom is a medical concept, deferring judgment to medical professionals. Despite this, most States place limitations on that medical judgment by implementing some quantification of viabilityterm·dom, either by reference to gestational age (GAterm·dom) or the capacities of a fetusterm·dom. Regulations at State level largely fit into three categories: those that define viabilityterm·dom as a matter of medical judgment; those that define viabilityterm·dom by referencing the capacities or features of the fetusterm·dom; and those that define viabilityterm·dom as a fixed point in gestation.

Some States define viabilityterm·dom only by referencing the capacities or features of the fetusterm·dom. Wyoming defines viabilityterm·dom as ‘that stage of human development when the embryo or fetusterm·dom is able to live by natural or life-supportive systems outside the womb of the mother according to appropriate medical judgment.’ 47 Utah defines viabilityterm·dom as the point when an ‘unborn child’ is potentially able to live outside the womb as determined by a doctor to a reasonable degree of medical certainty. 48 Among States that provide a definition of viabilityterm·dom, the vast majority explicitly include those fetusesterm·dom that can only survive ex utero with artificial support. As recently as 2006, Kansas defined viabilityterm·dom as the capacity to survive after birth, ‘without the use of extraordinary measures,’ 49 placing stricter limits on the kind of ex utero existence considered sufficient. The law in Kansas, however, now defines ‘viable’ as the stage of fetal development when ‘it is in the physician’s judgment according to accepted obstetrical or neonatal standards of care and practice applied by physicians in the same or similar circumstances that there is a reasonable probability that the life of the child can be continued indefinitely outside the mother’s womb with natural or artificial life-supportive measures’. 50 Interestingly, there are inconsistencies between States regarding how long after being born a fetusterm·dom would have to be physically able or likely to survive to be considered viable. There are limited references to this in the legislation of most States (adopting similar language to the English model), but there are some notable exceptions. Maryland specifies that viabilityterm·dom entails a ‘reasonable likelihood of the fetusterm·dom’s sustained survival outside the womb’; 51 Kansas also, as indicated, stipulates a ‘reasonable probability that the child can be continued indefinitely outside the womb’. 52 Such definitions, while uncommon in State Codes, are interesting in that they, in specifying the period of time that a fetusterm·dom would have to survive after birth, set a more stringent requirement on life after birth. These definitions seemingly exclude those fetusesterm·dom that might be delivered alive and survive only for a few seconds of independent life.

Other States have only implicit definitions of viabilityterm·dom. These States have statutes limiting abortionterm·key after a particular point in gestation. There is much variance on the identified point of viabilityterm·dom from 20 53 to 25 weeks. 54 Some States still adopt the trimester framework, limiting abortionterm·key from the second 55 trimester. Despite the Supreme Court having affirmed a constitutional right to abortionterm·key until viabilityterm·dom, by having left viabilityterm·dom abstract without careful quantification, pregnant people have been rendered vulnerable. There is extreme inequity in access to reproductive healthcare (including termination) across the Country. It is bizarre that the Supreme Court would affirm a right but leave that right with absent parameters enabling States to construct their own criteria to accessing it. There are several plausible reasons that might account for the significant discretion left to States on the content of this right. The viabilityterm·dom threshold is broadly enunciated in law with significant scope for political interpretation. 56 It is important to note here that in 2019 there was a trend of State legislatures attempting to abandon the viabilityterm·dom framework entirely. A swarm of ‘foetal heartbeat laws’ has been passed in Alabama, 57 Arkansas, 58 Mississippi, 59 and Louisiana. 60 These laws attempt to prohibit abortionterm·key after a foetal heartbeat can be detected—around 6–8 weeks from conception ‘regardless of viabilityterm·dom’ 61 (except in emergencies). These Acts have all, at the time of writing, been blocked by Federal Courts, 62 but they demonstrate a political determination among some legislatures to challenge Roe v. Wade.

IV. PRELIMINARY OBSERVATIONS There is some legal recognition that there is a state interest in potential life in both the USA and England and Wales, which has resulted in some legislative protection for unborn fetusesterm·dom. The law of each jurisdiction has also recognized that this state interest becomes ‘compelling’ later in pregnancy, so that restrictions can justifiably be enacted on abortionterm·key. There is incongruity, however, in ascertaining what viabilityterm·dom means and the point at which viabilityterm·dom occurs. This inconsistency demonstrates that different kinds of life ex utero are meaningful enough to command ‘state interest’ in each jurisdiction.

First, exactly how a viabilityterm·dom threshold has been established in law is different in each jurisdiction. While the term viabilityterm·dom is used explicitly in the US legal framework established in Roe v. Wade , it does not feature in the criminal lawterm·key in England and Wales at all. Despite this, it is clear that abortionterm·key regulation constructs a gestational time limit that intersects with a fixed point in gestation that is often cited as the point of fetal viabilityterm·dom, and the offence of child destruction affords some protections to fetusesterm·dom who are ‘capable of being born aliveterm·dom;’ which adopts the similar logics to the concept of viabilityterm·dom in being concerned with the fetusterm·dom’s potential.

Second, there are potential differences in these jurisdictions as to whether viabilityterm·dom as a legal concept is considered distinct from medical conceptions of viabilityterm·dom. The US Supreme Court has been clear that viabilityterm·dom is a term intended to reflect medical possibility, and most States have legislated along these lines, though this approach is not adopted by all State legislatures. In England and Wales, there remains debate as to whether viabilityterm·dom is a strict legislative threshold or an ill-defined legal construction 63 that might therefore reflect medical opinion.

Third, there is a significant inconsistency in the GAterm·dom of presumed viabilityterm·dom. In England and Wales, 24 weeks is used as ‘prima facie proof’. The US Supreme Court emphasizes that viabilityterm·dom is a medical question, though judgments have posited fetusesterm·dom which are viable from 23 weeks. There is also a significant variation in gestational limits at State level, including several US States with limits below 22 weeks. It remains to be seen how the US Supreme Court would rule on the constitutionality of these fixed points if specifically challenged. While there is inconsistency in terms of GAterm·dom between and within jurisdictions, there is a common problem with all of these approaches; they all label fetusesterm·dom as viable at a point in development when the data do not reflect a substantial likelihood of survival. Myrhaug and others note that since ‘proactive life support for infants born at 22–24 weeks’ GAterm·dom is a relatively new phenomenon, and [therefore] we have limited knowledge on the chance of survival and survival without significant impairments’. 64 Their systematic review concludes, however, that existing data suggest that the survival rate of neonatesterm·dom at 22 weeks was 7.3 per cent when calculated in proportion of all live births, and 24.1 per cent as a proportion of infants transferred to neonatal intensive care for treatment. 65 At 24 weeks, the survival rate is around 29.9 per cent when calculated as a proportion of all live births and 59.7 per cent as a proportion of those transferred to neonatal intensive care. Even at 24 weeks, the likelihood of survival is dependent on access to the best medical care. 66 Some cohort studies included in the review placed the likelihood of survival much lower. 67 It is puzzling that the law, and medical profession, sets the viabilityterm·dom standard with reference to, effectively, some chance of survival, rather than a reasonable chance of survival.

Moreover, there is no evidence that a fetusterm·dom could ever survive ex utero at some of the points that legislatures have identified (less than 22 weeks) even with intensive care, because the lungs would not yet be formed. Survival with the aid of intensive care is dependent on a neonateterm·dom having sufficiently formed lungs to tolerate artificial ventilation. 68 The way these thresholds (at a specific GAterm·dom) have been constructed suggests that viabilityterm·dom is concerned with a chance of survival, rather than the likelihood of survival or meaningful life after birth. Intuitively, however, it seems that a ‘state interest’ in an entity would be more defensible if there were some longevity to life.

In the following sections, I explore the coherency of viabilityterm·dom in the law, by examining what kind of life ex utero the legal frameworks of England and Wales and the USA consider valuable. This turns on whether viabilityterm·dom is constructed as a rebuttable presumption or an evidential rule. In both jurisdictions, an isolated point in gestation is identified, formally or informally, as the point a fetusterm·dom is (assumed) viable. Does this preclude fetusesterm·dom younger than this point from being recognized as viable? Does the law allow for the recognition that an individual fetusterm·dom is not viable later in gestation? A consistent and coherent account of viabilityterm·dom, that is carefully quantified, is not provided in English or US jurisprudence.

V. VIABILITYterm·dom EARLIER IN GESTATION In England and Wales, the law has constructed viabilityterm·dom as a rebuttable presumption, because a fetusterm·dom before the 24-week threshold is not precluded from being determined ‘viable’. The C v. S 69 judgment demonstrates the willingness of English judges to examine evidence regarding the viabilityterm·dom of fetusesterm·dom before the 24-week threshold. 70 However, the standard remains ‘capable of being born aliveterm·dom’, suggesting that the fetusterm·dom must be capable of displaying some legally recognizable life signs after being born. A newborn capable of only surviving with the aid of intensive care is considered viable in English law. There has been limited further clarification about what likely duration of life after birth is sufficient to establish that a fetusterm·dom is viable. Viabilityterm·dom is even less fixed in US law since the Supreme Court has refused to fix a point in gestation from which a fetusterm·dom is presumed viable. Individual States have thus been free to define viabilityterm·dom and the point from which they will assume that fetusesterm·dom are viable. Some states set a low threshold of presumed viabilityterm·dom.

Anti-choice campaigns often attempt to validate arguments about reducing abortionterm·key time limits by referencing advances in medical technology and their impact on the viabilityterm·dom timeline. 71 The argument is that if a fetusterm·dom can survive earlier in gestation ex utero , then abortionterm·key legislation should reflect that medical possibility. Prematurity remains the leading cause of death for preterms born at or before 26 weeks’ gestation, 72 because before this point, the infant risks being too functionally immature to survive. The likelihood of survival, and without serious complications resulting from care complications or developmental limitation, increases with GAterm·dom. There is considerable variation in studies investigating survival rates for neonatesterm·dom born preterm and extremely premature that is usually, as the British Association of Perinatal Medicine note, because results are influenced greatly by ‘cohort selection, place of birth and variation in the provision of active and obstetric and neonatal management’. 73 However, a recent systematic review notes that chance of survival, among those who receive intensive treatment, increases from 24.1 per cent at 22 weeks to 90 per cent at 27 weeks. 74 Only 23 per cent of surviving children delivered at 22 weeks are without an impairment; this rises to 39.3 per cent of those born at 24 weeks and to 70.8 per cent at 27 weeks. 75 In the medical literature, there is generally some consensus that a realistic threshold based on some chance of survival (as explained) can be placed at 24 weeks. 76 However, notable exceptions of preterms surviving exceptionally young and the wishes of parents to attempt resuscitation on preterm neonatesterm·dom serve to reinforce the notion of a viabilityterm·dom threshold accounting for outside possibilities. The Nuffield Council of Bioethics guidelines regarding resuscitation decisions specifies that resuscitation attempts on newborns below 22 weeks should not be attempted outside of recognized clinical trials. 77 This raises questions about the kind of life the law is recognizing ex utero . Is some possibility of survival ex utero sufficient, or some possibility of a healthy life with longer-term survival prospects? Or even a reasonable likelihood of survival with good prospects for a healthy life? In both jurisdictions, law and medical guidelines do not set their sights as high as a reasonable likelihood of survival and/or long-term prospects.

A. Artificial wombsterm·key: artificial amnion and placenta technology (AAPTterm·dom) 78 There has been little change in the data regarding premature survival in recent years, as it appears that the clinical possibilities of conventional care to aid survival have been exhausted. 79 Interventions can only do so much for preterms born without the functional capacities for independent life, e.g. insufficiently formed organs. There is, however, technology on the horizon thought capable of shifting the viabilityterm·dom timeline earlier in gestation. Two research teams, in the USA and Australia/Japan, have claimed ‘proof of principle’ for artificial amnion and placenta technology 80 (AAPTterm·dom) and speculate that their devices might replace conventional neonatal intensive care in the future. 81 These devices are designed to mimic the function of the placenta and environment of the human uterus such that they are capable of continuing the process of gestation (known as partial ectogestationterm·dom 82 ); ‘the central principle underlying the iterative development of [the EVE] platform is to treat extremely preterm infants as fetusesterm·dom, rather than as small babies… to avoid the use of pulmonary gasterm·dom exchange’. 83 Therefore, AAPTterm·dom would not be subject to the same limitations of gestational maturity, as they can facilitate continued organ maturation and growth and so could shift perceptions of the viabilityterm·dom timeline. 84 Research scientists are explicit that they intend to mitigate the impact of being born premature rather than challenge current conceptions of viabilityterm·dom. They identify their clinical target population at 23–25 weeks, 85 as those who would already be subject to treatment in intensive care. I have argued elsewhere that in the initial stages of testing this technology, it should be used on those preterms that we would not consider viable, because to test it on preterms potentially able to survive in intensive care is to deny them medical treatment for potentially no benefit. 86 There is thus the possibility that clinical trials of AAPTterm·dom will necessarily demonstrate the clinical utility of the technology in aiding developing human entities not currently considered viable. Moreover, if AAPTterm·dom can better promote the survival of preterms on this current viabilityterm·dom threshold, there will be calls to use the technology to aid those preterms delivered not far behind it. 87 Gradual use of technology, primarily to aid individual patients and eventually informing general practice, is how the medical conception of viabilityterm·dom has arrived at the 22–24 week point. It is hard to speculate about how far AAPTterm·dom may be able to stretch the viabilityterm·dom timeline, as there will be other natural limitations. The developing human entity must survive a form of birth to be placed in an ‘artificial wombterm·key’ (AAPTterm·dom). The developing human entity must also have some kind of fetal physiology to be supported by the current models being developed by researchers in the USA, Australia/Japan, and the Netherlands. 88 In the future, odds in the AAPTterm·dom might be improved if caesarean sections are scheduled and exposure time and stress for developing entities limited. Future models may (a long way in the future) also be capable of sustaining even more primitive human entities. While AAPTterm·dom is a speculative development, the technology is an interesting example to examine the coherence of viabilityterm·dom in the law.

AAPTterm·dom is conceptually distinct from other forms of preterm care because it is continuing the process of creating, rather than rescuing, developing human entities. Thus, the subject of an artificial wombterm·key (AAPTterm·dom), termed the ‘gestatelingterm·dom’, 89 is a unique entity because it is neither a fetusterm·dom nor a neonateterm·dom. A fetusterm·dom is a developing human entity undergoing the process of gestation dependent upon a pregnant person. A neonateterm·dom, while developing still, is no longer undergoing a process of creation and must be capable of partially self-sustaining in the external environment. A gestatelingterm·dom is undergoing the process of gestation and is not ex utero in a meaningful sense, but it is not dependent upon a pregnant person. 90 Viabilityterm·dom is generally thought of as the capacity to exist ex utero (conventionally the uterus being a part of a pregnant person). There is the potential to describe some fetusesterm·dom as ‘viable’ in the sense that they can be sustained outside the body of a pregnant person, but they are not in any way capable of an independent post-gestation existence. Should we consider these fetusesterm·dom ‘viable?’ Or not, because they are capable only of being transferred to an ‘artificial wombterm·key’?

Insofar as any legal concept of viabilityterm·dom has any utility, and it would distinguish between those fetusesterm·dom that are capable of independent existence after gestation and those that are not. A fetusterm·dom becomes ‘viable’ only when it can survive ex-gestation irrespective of where that gestation is taking place. A fetusterm·dom should only be described as ‘viable’ only when able to take on some of the burden of sustaining themselves independently. Emergence from gestation involves the developing human entity undergoing meaningful biological adaptations enabling self-sufficiency, interaction with and survival in the ex utero environment (even if they were dependent on rescue technologies in neonatal intensive care). 91 There are substantive reasons to believe that a fetusterm·dom gestating in a pregnant person that would only be able to continue any biological life ex utero if the process of gestation was continued is different in nature to the fetusterm·dom capable of making the biological state changes for independent living. If the purpose of the viabilityterm·dom timeline is to identify potential life that the state has a meaningful interest in preserving, the state has a greater interest in the preservation of a life able to survive ex utero rather than an entity that can only ‘continue to be gestated ex utero ’. 92 The entity that can make a meaningful adaptation to the external environment is a life that has the potential of being realized, rather than having potential only in a removed sense.

Is the existing law of England and Wales and the USA nuanced enough to account for this difference? Doctrinal lawyers are often criticized for considering the application of contemporary legal frameworks in different contexts—for example, the development of a future reproductive technology. However, it is only by speculating about how a potential future event (the development of AAPTterm·dom or ‘artificial wombsterm·key’) might be treated in contemporary legal frameworks that we can expose any potential conceptual flaws in the existing legal framework 93 and consider the necessary changes for a better legal future. In such an exercise, therefore, we can consider how the law and the logics that underlie it need reform in line with technological developments.

While English law does, to some extent, entrench a moveable concept of viabilityterm·dom, it makes explicit reference to being capable of ‘being born aliveterm·dom’ rather than just existing ex utero . The gestatelingterm·dom (subject of AAPTterm·dom) would likely not be capable of satisfying the legal definition of ‘born aliveterm·dom’ in English law because it does not breathe or perform any exertive activities that demonstrate any independence or self-sufficiency. 94 Because it remains in the process of gestation, it is not ‘born aliveterm·dom’. Thus, fetusesterm·dom should only be considered viable when capable of maintaining some kind of (supported) independent existence following the biological state changes encompassed in birth. In the USA, scholars frequently explain that the Supreme Court quantified viabilityterm·dom as a standard of only ‘independent existence’ from a pregnant person. 95 Horn, in her comparative account of abortionterm·key and the law in England and Wales, the USA, and Canada after the development of artificial wombterm·key technology, stresses that the viabilityterm·dom timeline in US law does mean that the development of the technology could result in significant restrictions on abortionterm·key access. 96 The explicit references to medical advancements and the likelihood that viabilityterm·dom will shift with future medical developments in Roe and Casey are highlighted as support for the suggestion that a fetusterm·dom would be considered viable for legal purposes earlier and earlier in gestation. 97 English and US law thus have different approaches: English law is concerned with fetusesterm·dom capable of being born and maintaining some independent life function, whereas in US law, the standard is stipulated in a way that sets the threshold lower; at just independence from a pregnant person. English law is concerned with the capacities of the developing human entity, whereas US law is not. Some US States have passed legislation conceptually similar to the English approach—making specific reference to the capacities of the fetusterm·dom—even though they are not required to set such specific standards. The reasons for the difference can be elucidated in the origins of the law in each jurisdiction. In England and Wales, the focus on the ‘capacity to be born aliveterm·dom’ standard originates from the ‘born aliveterm·dom’ rule in criminal lawterm·key. A human entity only has legal personality and can therefore be the victim of homicide, if it is born aliveterm·dom . 98 Such a rule has been long established in English law; in the 17th century, Sir Edward Coke wrote that if a woman be quick with childe and by potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead childe, this is great misprison, and no murder: but if the childe be born aliveterm·dom, and dieth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura , when it is born aliveterm·dom. 99 A human entity that is killed before being born aliveterm·dom cannot be recognized as a victim of homicide, but its death is recognized in the crime of child destruction. 100 The offence of child destruction was constructed with reference to the ‘born aliveterm·dom’ rule—and therefore places emphasis on the potentiality to be alive (i.e. exercising some independent function), since being alive at birth is the relevant fact in the law. 101 In contrast, US law has focused on the capacity for an independent existence because the law as it was conceptualized was not attempting to construct a coherent distinction between infanticide and homicide, but to establish an object of legitimate state interference—thus, it focuses solely on the circumstance in which a human entity’s existence no longer infringes on the right to privacy of a pregnant person by virtue of its location—independence from the pregnant person.

It is interesting that in both jurisdictions, there remains some extent to which the determination of viabilityterm·dom (even for the purposes of the law) is a medical question. The US Supreme Court is, as explored, explicit that this is the case, and in England and Wales, the ‘capacity to be born aliveterm·dom’ may be open to medical interpretation. It remains to be seen how the medical profession will respond to AAPTterm·dom and whether the technology will be considered conceptually distinct from rescue technologies in practice and its impact on the viabilityterm·dom timeline. For obvious reasons, there is yet little qualitative or quantitative data available about the attitudes of doctors toward viabilityterm·dom and abortionterm·key provision in light of AAPTterm·dom. In a 2020 study, 91 Australian doctors were asked closed questions about their conception of viabilityterm·dom in the advent of such technology and its capacity to continue gestation of fetusesterm·dom at 22 weeks. The study reported that 88 per cent of respondents believed that, in light of the technology, if a fetusterm·dom were delivered at this point, it should be considered ‘viable’. 102 Interestingly, 41 per cent of respondents indicated that the availability of such technology would influence their opinion of abortionterm·key being performed at this GAterm·dom. 103 If viabilityterm·dom is a concept intended to meaningfully convey some notion of the potentiality of life, English law currently adopts the more coherent account of viabilityterm·dom as applied earlier in gestation. There is a meaningful developmental difference between a fetusterm·dom no longer necessarily in need of being created because it could survive after gestation with conventional care and a fetusterm·dom that cannot be sustained outside of gestation. Though questionable, if the state has an interest in potential life, it seems intuitive that this interest would be directed only toward those fetusesterm·dom that could live in the external environment rather than those human entities still dependent on being created (whether in utero or an ‘artificial wombterm·key’). The approach of the US Supreme Court is vague and encompassing of fetusesterm·dom incapable of making the necessary biological state changes to demonstrate a completed birth .

VI. VIABILITYterm·dom LATER IN GESTATION The legal framework of these jurisdictions considers viabilityterm·dom a rebuttable presumption earlier in gestation, but what about those cases where the viabilityterm·dom of a fetusterm·dom later in gestation (passed the point the law might presumes viabilityterm·dom) is questionable? Examining to what extent the law is sensitive to the capacities of an individual fetusterm·dom is an important aspect of ascertaining the substance of viabilityterm·dom and what it intends to protect. If viabilityterm·dom is about establishing the point a fetusterm·dom becomes a ‘potential life’, this will always be specific to an individual fetusterm·dom and its capacities. If viabilityterm·dom operates as a rebuttable presumption in one direction, to allow for recognition that a fetusterm·dom earlier in gestation might be viable, it would be inconsistent not to recognize that some fetusesterm·dom may not be viable later in gestation. It is potentially possible to generalize that most fetusesterm·dom will be sufficiently developed to survive with some assistance after a specific point in gestation; however, this will always depend on the particular circumstances. The medical standard of viabilityterm·dom is based on the ‘human interpretation of statistical probabilities’ applied to fetusesterm·dom as a class. 104 There will be variances between fetusesterm·dom at the same point in the gestational period, such that we could describe one fetusterm·dom as ‘viable’ at 25 weeks and another not based on their stage of development.

A. Anencephalyterm·dom Anencephalic fetusesterm·dom have a congenital absence of the brain, parts of the skull and scalp, 105 and are inherently non-viable because the absence of a brain is lethal and irreversible in all cases. 106 Stillbirth is a common outcome of an anencephalic pregnancy. 107 When the fetusterm·dom can be delivered biologically alive, it does not survive long post-delivery. 108 Anencephalyterm·dom is usually detected during prenatal ultrasounds; though sometimes not until later in pregnancy. 109 Applying the law to anencephalyterm·dom allows consideration of whether viabilityterm·dom is individualized to a fetusterm·dom and its capacities, or it is a rigid concept strictly applied later in gestation.

In English law, there is provision for the termination of an anencephalic fetusterm·dom even after 24 weeks (the implicit viabilityterm·dom threshold). The Abortionterm·key Act 1967 110 provides a defence to a doctor performing a later-term abortionterm·key in the case of ‘a substantial risk that if the child were born… it would be seriously handicapped’. There has been little clarification of the necessary severity of the handicap in these circumstances; 111 however, it is clear that given the severity of anencephalyterm·dom that abortionterm·key would be lawful here. This does not answer the question as to whether such a fetusterm·dom would be considered ‘viable’ and whether the prima facie assumption of viabilityterm·dom from 24 weeks can be rebutted. An English Court has not addressed this issue, because the AA 1967 does allow termination after 24 weeks in all the circumstances it is usually sought after on the grounds that the foetus is non-viable (without needing to consider viabilityterm·dom). The AA 1967 is clear that even after a fetusterm·dom is prima facie viable, the pregnant person’s interests in health and life remain paramount, allowing them to terminate their pregnancy if necessary. The handicap provision does not mandate that the fetusterm·dom must have an abnormality that would be life-limiting after gestation. 112 It is therefore unknown whether there is any requirement in English law that to be capable of being born aliveterm·dom, the fetusterm·dom need be capable of longer-term survival. English legislation was likely intended to afford legal protection to any human entity that survived birth, irrespective of prospects for longer term survival. 113 Viabilityterm·dom is not a coherent concept if it does not proscribe more than surviving birth. C v. S established that a prima facie assumption of viabilityterm·dom at a particular point in gestation is intended to shift the burden of proof in establishing viabilityterm·dom away from a prosecutor. If the Court is willing to accept that a party can claim that viabilityterm·dom is evident earlier in gestation if compelling evidence is presented, 114 equally then should not the ‘prima facie proof’ of viabilityterm·dom be challengeable with evidence? An anencephalic fetusterm·dom, regardless of GAterm·dom, would patently never be capable of surviving for a meaningful amount of time after birth. Most fetusesterm·dom with anencephalyterm·dom are absent a cerebral cortex and thus will never be capable of consciousness, and only capable of sustaining very limited signs of life for a short period. 115 While such a fetusterm·dom might be considered biologically alive on delivery because of these basic signs of life, it might also satisfy the legal definition of death in English law, that is brain death. 116 Thus, describing it as ‘capable of being born aliveterm·dom’ seems counter-intuitive. If a fetusterm·dom were never likely to have an independent life or consciousness—why should it be afforded comparable protection to fetusesterm·dom with potentiality? Arguably, the AA 1967 is intended to ensure exactly this by providing explicit grounds for the termination of those fetusesterm·dom unlikely to survive as a result of a severe congenital impairment.

The US Supreme Court is clear that the viabilityterm·dom threshold intends to protect the ‘potential for independent life’. Little further clarification has been offered about what kind of life meets this standard. Thus, it remains unclear whether viabilityterm·dom later in gestation is a rebuttable presumption in US law. Some States have chosen to be more specific in legislation about what kind of ex utero existence is sufficient to establish viabilityterm·dom. While most refer to artificial life support to denote fetusesterm·dom that can survive with the assistance of intensive care as potentially viable, few qualify that further with reference to the duration of life after birth. In Florida, viabilityterm·dom means ‘the stage of fetal development when the life of the fetusterm·dom is sustainable outside the womb through standard medical measures’. 117 In Maine, viabilityterm·dom is defined as ‘the state of fetal development when the life of the fetusterm·dom may be continued indefinitely outside the womb by natural or artificial life supportive means’. 118 Maryland defines viabilityterm·dom as a ‘reasonable likelihood of the fetusterm·dom’s sustained survival outside the womb’. The American College of Obstetricians and Gynecologists echo this approach, advising that abortionsterm·key performed later in pregnancy are usually those involving risk to the pregnant woman or foetal ‘anomalies incompatible with life, such as anencephalyterm·dom…’. 119 In some States, a fetusterm·dom would be described as viable if there were only the possibility of it surviving birth and no longer, for example States that consider a fetusterm·dom viable from a specific point in gestation at which the data would not predict a reasonable likelihood of either long-term survival or even any survival after birth. 120 The recognition afforded to these fetusesterm·dom with conditions incompatible with life is not only incoherent but also actively harmful to pregnant people carrying an anencephalic pregnancy. A recent anonymous testimonial by an American physician describes the agony of attempting to support patients carrying pregnancies with no chance it results in a child while being legally, professionally, and politically restricted from offering the option of ending the pregnancy. 121 The legality of an abortionterm·key based on foetal abnormality is dependent upon the law of individual States.

The rigidity of homicide law in both jurisdictions means that the live birth of a non-viable neonateterm·dom that is subsequently killed would trigger homicide culpability. In the USA, the Born-Alive Infants Protection Act 2002 extended federal protection afforded to infants ‘born aliveterm·dom’ at any stage of development. The Act defines ‘born aliveterm·dom’ as breathing or ‘has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles…. Regardless of whether the expulsion… occurs as a result of natural or induced labor, cesarean section, or induced abortionterm·key’. 122 It is possible for a fetusterm·dom without the capacity for life; even those absent a brain, to be born bearing these signs of life, and protected by the law of homicide.

The ‘born aliveterm·dom’ rule also applies in England and Wales. Any human entity born aliveterm·dom is a person for the law of homicide. English law dictates that a child is born aliveterm·dom if it breathes or demonstrates ‘any other signs of life’. 123 There was little further clarification in the relevant legislation about what signs of life are sufficient to demonstrate life. It is clear, however, that a fetusterm·dom need only survive the process of birth and display signs of life for a short time after to be a potential victim of homicide if action is taken to end its life. 124 In both jurisdictions, the live birth of a non-viable neonateterm·dom that is then killed would trigger homicide culpability, yet termination of the same entity when a non-viable fetusterm·dom (whether it is non-viable inherently because it is absent a brain or because it is too immature to survive) might not be an unlawful abortionterm·key. This appears initially incoherent and confusing and is an inconsistency that anti-choice advocates often attempt to monopolise on by analogizing the unborn with the neonateterm·dom. In the USA, this has culminated in several States adopting ‘foetal personhood’ laws to recognize that a fetusterm·dom can be the victim of a homicide with the effect of undermining abortionterm·key provision. 125 There has been no positive case advanced for non-viable or never-viable fetusesterm·dom being afforded the protection of homicide law. It is illogical to use a fetusterm·dom that was never capable of living long post-birth to reason that a fetusterm·dom also not capable of, or even never capable of, living if it were born should have an equivalent protection. This was the conclusion reached on this subject in the Supreme Court of Brazil which held that, ‘abortionterm·key is a crime against life. The potentiality of life is what is protected. In the case of anencephalic fetusesterm·dom.... there is no life possible’ thus, there can be no crime’. 126 In any event, we expose more incoherence in the meaning afforded to viabilityterm·dom in the law when we consider examples later in gestation, both within and between the USA and England and Wales.

It is useful here to highlight that there is no moral continuity between an entity that has actually been delivered alive and an entity that could be delivered alive. 127 The rigidity of homicide law in this area is potentially necessary as a way of ensuring that there is no discrimination between human entities. Greasley explains that ‘interpersonal variations in person-relevant capacities should not affect the equal moral status of individuals within the range… [this is] morally essential for maintaining the kind of relations between persons that we deem valuable’. 128 As such, a human entity delivered alive 129 is afforded the protection of the law of homicide because they have been born aliveterm·dom, even if they cannot survive in the longer term. It is clear, however, that a fetusterm·dom who has the capacity to be born aliveterm·dom (whether that survival would be short- or long-term) need not be treated with a comparable level of respect. The reality is that capacity to be born aliveterm·dom is not the same as having been born aliveterm·dom.

Any recognition given to the ‘capacity to be born aliveterm·dom’ is an argument based on potential—and we do not treat entities on the basis of what they might be, but on what they are. 130 Any equivalence drawn between the capacity to be born and having been born is ‘in itself misleading, for it is often taken to suggest that an X that is potentially a Y in some mysterious fashion already possesses the being and significance of Y’. 131 There are meaningful differences between these two entities—one capable of being born aliveterm·dom and one born aliveterm·dom—most notably, that the entity capable of being born aliveterm·dom is still located inside a gestating person, 132 or dependent on an artificial placenta. In contrast, however, the entity born aliveterm·dom is ‘natal’ and has ‘come into the world with and as a specific body, in a given place, set of relationships, situation in society, culture, and history…’ and is dependent in ways that specifically flow out of their birth 133 including interaction and physical contact with others. Entities with the potential to be born aliveterm·dom may well become natal in this meaningful sense, however, significant changes in physicality (the process of birth), in the case of entities located inside a gestating person, and physiology (adaptation to the external environment) must take place before they do. These are substantial prerequisites to being born aliveterm·dom: a human entity must survive delivery and must adapt to the external environment.

VII. THE CONCEPTUAL ILLEGITIMACY OF VIABILITYterm·dom THRESHOLDS Horn argues that ‘Canadian law does not set a viabilityterm·dom timeline for abortionterm·key demonstrates that legal “viabilityterm·dom” is not a quality naturally vested in some fetusesterm·dom, but a fictive construct designed to act as a limitation on abortionterm·key’. 134 She makes this argument as a basis for decriminalization as a model for protecting abortionterm·key provision with the advent of artificial wombterm·key technology in the UK (where the AA 1967 applies) and the USA like, as she demonstrates, the right to abortionterm·key would be in Canadian law even with such technology available. 135 The traditional viabilityterm·dom analysis, evident in the law in English and US law, assumes that foetal viabilityterm·dom is a legitimate foundation for regulation. Horn concludes that a framework ‘based on fetal viabilityterm·dom regardless of how it is defined fails to sufficiently account for relationality and care for the pregnant person’ by decentralizing the pregnant person. 136 In this paper, I sought to add meaningfully to her call—first, by demonstrating the doctrinal incoherence in the concept of viabilityterm·dom as it both currently quantified and deployed in English and US law. This investigation was necessary to illustrate how the ‘self-evident logic’ that is sometimes claimed of the viabilityterm·dom threshold does not stand up, especially if we examine how viabilityterm·dom is defined and utilized in the law. Second, my work adds to this call by demonstrating the inadequacy of viabilityterm·dom in regulating abortionterm·key provision in contexts beyond that of AAPTterm·dom; most notably, by comparing how the concept applies to fetusesterm·dom with conditions incompatible with life. In the following section, I make the case that using a viabilityterm·dom threshold to regulate abortionterm·key provision is not an effective standard of compromise in the law, nor conceptually legitimate.

The entrenched reference to viabilityterm·dom in the law assumes that it is necessary to strike a balance between a state’s interest in potential life and a woman’s right to bodily autonomy and equality. Frequently, the viabilityterm·dom threshold is conceptualized as a ‘compromise’ between these two interests, but it performs no such function. Despite the regulation of abortionterm·key by criminal statute in England and Wales and the USA, it is notable that the state interest in abortionterm·key policy has not been elaborated upon in any of these jurisdictions. Dalzell explains that in Roe and Casey , there is no exploration of the ‘state interest in potential life’ by quantifying or defining this interest, effectively ‘stripping the state from the duty of proving its interest’. 137 The interest in potential life has been interpreted broadly in the USA, as always present but ‘compelling’ only after viabilityterm·dom in Roe , 138 and in England and Wales, there has been little exploration of the justification for state rationale in legislating to make abortionterm·key harder to access after a viabilityterm·dom threshold. Abortionterm·key legislation was introduced in England and Wales ‘to clarify the law for doctors and to stem the misery and injury from unhygienic, risky illegal abortionsterm·key’. 139 In the 1990, Commons debate regarding the time limit for ‘social abortionterm·key’ discussion centered around preventing later-term abortionterm·key, and a lack of public support for abortionterm·key ‘on demand’ 140 rather than explaining why abortionterm·key was a public, rather than a private, matter. What is the justification for abortionterm·key being anything other than a person’s private choice? All sorts of ‘moral matters’ that were at one time thought the business of the state have since been rightfully recognized as private choices. The onus in thinking about abortionterm·key must be flipped; claims that the state has an interest in preventing abortionsterm·key must be fully justified, rather than it being women and pregnant people who are routinely forced to defend their privacy, autonomy, and equality.

If the justification for state interest is based on preserving life, or potential life, in any real sense, the law would only provide legal protection for a developing human entity from the point of birth. This is the point at which there is a human being existing independently of another person demonstrating any potentiality for independent life. This is just not true in any way at the point at which an unborn entity is dependent upon a pregnant person. There is compelling evidence to suggest that only fetusesterm·dom near to or at the end of the gestational period can be described as ‘naturally viable’. 141 The gestational period is around 36 weeks, and a fetusterm·dom is only likely to have sufficiently developed lungs, allowing for breathing ex utero without assistance, at around 30 weeks. 142 There might be an attempt to argue that the State has an interest in life in a symbolic sense—in setting a standard of protecting life that might come to fruition as a way of recognizing the value of life. This cannot be the case, however, as a State that professed such a position would surely pass rules limiting the use of birth control, or requiring that ‘spare’ embryos left over from IVF be implanted, as these examples are instances where there is interference with ‘life’ in a symbolic sense.

The balance in the ‘viabilityterm·dom compromise’ is not appropriate because it pits women and pregnant people’s rights against unarticulated state interests. As Jackson highlights ‘the logical corollary of an abortionterm·key law that sets limits upon women’s access to abortionterm·key is that, in certain circumstances, a woman can be obliged to carry her unwanted pregnancy to term’. 143 The purpose of a viabilityterm·dom threshold limiting abortionterm·key access, therefore, will always be to place some (symbolic or real) limits on pregnant people’s rights. The argument could be made that, even if AAPTterm·dom were available tomorrow, a shift in the viabilityterm·dom threshold is unlikely to be so drastic to restrict access to conventional abortionterm·key. The vast majority of abortionsterm·key take place before 13 weeks in England and Wales 144 and the USA. 145 Thus, most pregnant people would not be prevented from accessing abortionterm·key. However, as Eades explains those who face difficulty are likely to be the most vulnerable—pregnant people who experienced delayed seeking abortionterm·key because they live in an area where access is difficult, they have experienced domestic violence or are younger or older persons who did not recognize their symptoms as pregnancy. 146 These people are equally entitled to access healthcare and should not have to face the stigmatizing effects of being labeled as an ‘exception to the rule’ for having a post-‘viabilityterm·dom’ abortionterm·key. Even if few pregnant people are denied an abortionterm·key, the impact of singling out more vulnerable people in difficult situations for the stigmatizing process of proving the necessity of their abortionterm·key, or face losing the option, is substantial.

Regulating abortionterm·key by reference to a viabilityterm·dom threshold is not a compromise because it fails to recognize the importance of the right to meaningful equality for women, penalizes pregnant people likely to submit for abortionterm·key later because of circumstances that have already marginalized them, and labels women and pregnant people as ‘in need of regulation’ to prevent them making ‘bad’ choices. Cook explains that criminal abortionterm·key, like crime generally, is a legal and social construct … the criminal essence of abortionterm·key then implicates the social construction of those who actually and potentially seek abortionterm·key and those who provide and assist in its provision. By framing abortionterm·key as a crime societies ascribe deviance to those seeking and providing it…. 147 The framing of all abortionterm·key as a crime in England and Wales ‘in need of a medical explanation’ has a similar effect of stigmatizing the choice to end a pregnancy 148 and constructing those pregnant people who access treatment as deviant and as failing to perform the role expected of the female body. This will necessarily affect how doctors perceive the procedure, those seeking it and the advice that they give. This is inappropriate because it limits access to a service that is necessary both to ensure female health and to ensure that women have access to social equality. Cornell argues that there can be no meaningful equality for female people without access to abortionterm·key because denying access ‘prevents the minimum conditions of individuation necessary for any meaningful concept of selfhood’. 149 She posits that denying access to abortionterm·key ‘should be understood as a serious symbolic assault on a woman’s self of self precisely because it thwarts the projection of bodily integration and places the woman’s body in the hands and imagings of others who would deny her coherence by separating her womb from herself’. 150 This harm is broad, experienced not only by female people at the time of unwanted pregnancy but also constantly by all people with the physiology to get pregnant. Without abortionterm·key, all people with the physiology to get pregnant are denied that their womb (and their body) is theirs to imagine into the future. Cornell explains that ‘the fear of unwanted pregnancies and illegal abortionsterm·key haunted women’s sense of themselves long before the women themselves actually became pregnant’ and thus to deny a right to abortionterm·key is to label the female body as not individual (and its function to be subjectively determined), but as limited to a maternal function. 151 A person cannot perceive themselves as equal to others in the course of social life if they are not able to engage in social activity without feeling defined by their sex or physiology, thus limiting their free choices (particularly with regards to sexual activity). Interference in choices about abortionterm·key in the law, which are also based on archaic assumptions about pregnancy and female behavior, attempts to enforce notions of the female body as inevitably constrained to the maternal function by biology and thus reinforces problematic notions of female function. Viabilityterm·dom is not a compromise at all.

There are also pragmatic problems with using a viabilityterm·dom threshold to regulate because it is innately arbitrary. Viabilityterm·dom is wholly dependent on geography and resources. 152 Moreover, it is moveable and uncertain. 153 The standard of viabilityterm·dom in medicine is based on the ‘human interpretation of statistical probabilities’ applied to fetusesterm·dom as a class. 154 There is disagreement about the likelihood of survival at different points in the gestational period. There is, for example, significant dissenting medical opinion about the appropriate point to rule out ‘newborn rescue’ after birth. 155 There is also variance between individual fetusesterm·dom at the same point in the gestational period. The US Supreme Court, in both Casey 156 and Roe, 157 explained that legislatures and Courts are entitled to draw arbitrary lines so long as they produce fair outcomes. Limiting abortionterm·key access based on viabilityterm·dom always perpetuates unfairness, because it forces clinicians to engage with the concept of viabilityterm·dom and, as Horn explains, thus think more about GAterm·dom and the fetusterm·dom than the pregnant person and their needs. 158 Thus, again the focus on viabilityterm·dom is not an ‘effective compromise’ between abortionterm·key rights and state interest in fetal life. It might be, however, argued that such considerations are relevant from the perspective of the pregnant persons’ health because there are material risks associated with intervention later in gestation. Erdman demonstrates, however, that abortionterm·key is often targeted for excessive regulation due to falsehoods about its inherent risks or dangerousness, [which is simply] a function of abortionterm·key stigma. The over-regulation of abortionterm·key throughout pregnancy on grounds of medical need or safety is another instance of boundary crossing, where moral and material hazards merge. 159 Restrictions based on these grounds, Erdman explains, overstay the available evidence and thus prevent the safe delivery of healthcare services to pregnant people. 160 The construction of ‘absolute gestational cutoffs’ 161 prevents the (what should be undisrupted) human rights of the pregnant person to make decisions about their own healthcare. 162 This right of pregnant persons is well recognized in the law, 163 and yet seems to go completely ignored in this context. Moreover, the arbitrariness of viabilityterm·dom in some legal instruments constructs an imprecise gestational cut off, which even further harms pregnant persons, by actively fostering moral uncertainty among providers that has come, and will continue, to limit pregnant people’s access to care from their doctors. 164 Furthermore, because viabilityterm·dom is innately variable, it has been utilized by the anti-choice lobby and US State legislatures to justify restrictive definitions only loosely related to the capacity to be born aliveterm·dom. ‘Foetal pain’ has been related to viabilityterm·dom in attempts to embed further restrictions in federal law. 165 It is hard to see why the state has an interest in a fetusterm·dom just because it has a primitive ability to feel pain (rather than the complex emotions associated with pain only experienced when one has the ability to subjectively interpret experiences such that pain becomes suffering). Or, why the state has an interest in a fetusterm·dom that can be gestated ex utero , or even survive ex utero , when this entity is not a fully formed human being and, at the time of making these assertions of interest, is located inside a person. The viabilityterm·dom timeline is primarily useful for aiding doctors and parent(s) in making decisions about the intensive care that should be provided to preterm neonatesterm·dom based on their functional capacities to survive in the external environment. This is an entirely different situation from people making decisions about pregnancy termination—so why should the two influence each other? 166 The viabilityterm·dom threshold assumes that legislation is necessary to prevent a surge in late-term abortionsterm·key when this is unlikely. The data in countries where abortionterm·key law makes no reference to a viabilityterm·dom threshold suggest, however, that there has been no quantum leap in abortionterm·key (or late-term abortionterm·key) provision in the absence of law. 167 Pregnant people seeking abortionterm·key, for a variety of reasons, tend to access treatment as early as possible. Thus, without explaining what the state interest is in the viabilityterm·dom threshold, it becomes easy to presume that it is intended to do nothing other than control both literally and symbolically the female body, women and pregnant people’s choices.

Jackson advocates that English ‘abortionterm·key law should no longer consist in a set of defences to the crime of abortionterm·key, but rather should, like the rest of British medical law, be informed by the guiding principle of self-determination’. 168 If abortionterm·key is recognized in England and Wales as a healthcare resource, meaningful conversations can be had to protect access to preserve pregnant people’s bodily integrity, healthcare interests, and women’s equality and, agreeing with Horn, even if medical technology in neonatal intensive care advanced to the point of AAPTterm·dom.

The AA 1967 does not apply in Northern Ireland, which meant that (until recently) abortionterm·key under the Offences against the Person Act 1861 was criminal except where necessary to save the pregnant person’s life. In 2019, abortionterm·key was finally decriminalized in Northern Ireland. 169 This step signaled progress in the UK and an opportunity to consider how abortionterm·key might be regulated without over-medicalization or unnecessary gestational time limits. However, on the March 31, 2020, the Abortionterm·key (Northern Ireland) Regulations 2020 came into effect 170 and this new regulatory framework still entrenches abortionterm·key provision by reference to gestational limits. Regulation 3 stipulates that a medical professional can terminate a pregnancy where they are of the opinion, formed in good faith, that the pregnancy has not exceeded its 12th week. This provision is more progressive than section 1 of the Abortionterm·key Act 1967 because it does not require that an abortionterm·key before 12 weeks be justified in clinical terms. An abortionterm·key can be performed for any reason or no reason at all. However, that this is limited to 12 weeks is unfortunate. Regulation 4 effectively mirrors s.1 (1) (a) of the AA 1967 and stipulates that where a pregnancy has not exceeded 24 weeks termination may be provided where the continuance of pregnancy involves risk to the physical or mental health of the pregnant person greater than termination. 171 After this point, pregnancy may only be terminated where there is some immediate necessity to save the life of the pregnant person, 172 where there is risk to life or grave permanent injury of the pregnant person 173 or in cases of severe fetal impairment. 174 These regulations are to be welcomed as a step toward finally enabling the provision of essential care in Northern Ireland; however, it is unfortunate that the framework still entrenches the provision of care based on gestational limits.

The advocated shift in abortionterm·key law away from rights contingent on viabilityterm·dom advocated by Jackson, 175 Sheldon, 176 Erdman, 177 Horn 178 and others, and the policy that would follow, might be more difficult to achieve in the USA since abortionterm·key politics are far more visceral. Thomson-Philbrook explains that abortionterm·key has become such a prominent political issue in the USA, simply because it was declared a right to be accessed by women. 179 This illustrates an important point about how the substance of the law is in how it is socially implemented. It seems less important to have a formally declared constitutional right to services than it does to have access to them. It is beyond the scope of this paper to postulate about how a shift in abortionterm·key politics toward recognition of abortionterm·key as routine healthcare in the USA might be achieved without emboldening anti-choice strategy and jeopardizing access. Some States are already thinking about this; in 2019, Vermont passed a law guaranteeing the right to abortionterm·key with no restrictions based on timing or GAterm·dom. The law is explicit that no public authority can ‘deprive a consenting individual of the choice of terminating the individual’s pregnancy; interfere with or restrict… the choice of a consenting individual to terminate the individual’s pregnancy [or] prohibit a health care provider… from terminating or assisting in the termination of a patient’s pregnancy’. 180 The law makes no reference to GAterm·dom.

VIII. CONCLUSION Viabilityterm·dom is an incoherent legal concept as it is currently featured in US law and in the legal framework in England and Wales. Viabilityterm·dom is frequently ill-defined and presumed from a point in gestation before the fetusterm·dom has a reasonable chance of survival, thus undermining the (limited) logic behind the use of viabilityterm·dom in determining the protection afforded to unborn entities. Furthermore, viabilityterm·dom appears to be a rebuttable presumption based on the capacities of a fetusterm·dom and the technology that might be available to support it in one direction (earlier in gestation), but not in the other (later in gestation) even when the fetusterm·dom is completely non-viable. I demonstrated that there is, therefore, little clarity or consistency in determining what kind of life extra uterum matters using the examples of AAPTterm·dom (‘artificial wombterm·key’ technology) and unborn human entities with life-limiting conditions. There remain significant ambiguities in the law in England and Wales and the USA because of a failure to quantify what kind of extra uterum existence is meaningful. In this paper, following other feminist scholars, I argued that viabilityterm·dom was a conceptually illegitimate basis for abortionterm·key regulation.

CONFLICT OF INTEREST STATEMENT None to declare.

FUNDING I am the recipient of a Wellcome Trust Doctoral Studentship in Society and Ethics (grant reference 208245/Z/17/Z).

ACKNOWLEDGMENTS I am grateful to Professor Bernard Dickens at the Faculty of Law at the University of Toronto for hosting me in Toronto to undertake this research and for his helpful comments on earlier drafts of this work. I am also thankful to the Wellcome Trust for funding my research and to the University of Manchester Faculty of Humanities for awarding additional funding for this visit. I would also like to thank Dr Victoria Hooton, Dunja Begović, Anna Nelson, and the two anonymous reviewers and editors at the Journal of Law and Biosciences for their comments on earlier drafts.

Footnotes