"Viability" has been a key concept in abortion rights throughout the Roe v. Wade era. That is, access to abortion has been provided so long as the attending physician does not believe the fetus could survive outside the womb. Roe v. Wade defined viability as 23 weeks.
Chief Justice John Roberts has been part of the conservative attempt to reframe the conversation away from "viability," and toward a much more vague and subjective standard: giving women a "reasonable chance" to abort an unwanted pregnancy.
But, as legal expert Bill Blum asks, "What is reasonable?"
Justice Roberts once suggested a definition 15 weeks, which would accommodate the restrictive Mississippi bill currently before the Supreme Court. But, warns Blum, that would open the door for abortion to be legislated at the state level, essentially overriding Roe v. Wade by other means.
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“If you return it to the states, understand the consequences,” says Blum. Some states, including Texas and Louisiana, are likely to criminalize abortion altogether, even in cases of rape and incest. “You're going to be prosecuting women and doctors and nurses for committing felonies, if they have abortions.”
Legal expert Sharon Kyle argues that the abortion debate should be framed not around the morality of the act of abortion itself, but rather around who gets to to make the decision.
“I think the vast majority of women are not pro-abortion, but what they are pro- is pro- having a say about what happens to their bodies,” she says. “A decision must be made. Who gets to make that decision?”
Watch the full discussion: