A major medical group is advising journalists to learn about fetal viability and says it should no longer be used as a dividing line for legal abortion.
Recently, the American College of Obstetricians and Gynecologists (ACOG) sent some journalists a link to a policy statement on its website called “Facts Are Important: Understanding and Navigating Viability.” [See key points, below.]
The statement says that viability can’t be definitively determined in the latter stages of pregnancy, and inaccurate use of the term “can prevent patients from receiving essential health care.”
It adds that ACOG “strongly discourages the inclusion of viability in legislation or regulation.”
That stance echoes feminist scholars who say viability has no place in abortion law — where it’s been invoked for half a century, since the Supreme Court ruled in Roe v. Wade that the Constitution did not permit states to ban abortion before a fetus could live outside the womb.
In addition to being ambiguous and dependent on factors such as location and medical resources, viability “has the effect of heavily diluting pregnant people’s rights with overly moralistic limitations on access to healthcare,” one expert, Elizabeth Chloe Romanis, who is now an assistant professor of biolaw at Durham University in the United Kingdom, wrote in the Journal of Law and the Biosciences.
In the wake of Roe ‘s fall, some states still use viability as a dividing line for legal abortion. Currently, 11 states have a viability threshold, according to the New York Times, although the Guttmacher Institute puts the number at 12.
The myth of late-term abortion
Women’s health advocates say inaccurate language about viability stokes a myth that pregnant people would commonly opt for so-called late-term abortions — a term that, as The 19th explained, was coined by abortion opponents and has been rejected by physicians and scientists.
More information is in ACOG’s Guide to Language and Abortion.
A recent example sprang from a proposed ballot measure to enshrine reproductive rights in Ohio’s constitution. As the AP explained, the measure would allow for abortion to be prohibited “after fetal viability,” but not if a physician deems it necessary to protect a pregnant patient’s health or life.
Yet a Republican-drafted summary stated that the measure would grant physicians “the authority to determine” viability and would “always allow an unborn child to be aborted at any state of pregnancy, regardless of viability” if a physician determines that the life and health exception applies.
The summary was challenged by ACOG and others as deceptive to voters.
Jurisdictions where abortion law doesn’t mention viability experience no “quantum leap” in abortion or so-called late-term abortion, Romanis noted. “Pregnant people seeking abortion, for a variety of reasons, tend to access treatment as early as possible,” she wrote.
Data bear that out. Abortions at or after 21 weeks represent just 1% of U.S. abortions, according to a KFF fact sheet published in 2019, which noted that late abortions typically cost well over $1,000, excluding travel and lost wages.
Shifting voter sentiments
According to ACOG, people who seek abortions late in pregnancy are typically caught in unusual circumstances such as profound fetal anomaly, personal health risk, lack of recognition of the pregnancy that resulted in delayed care, and/or lack of access to care earlier in pregnancy.
Some states have recognized these realities. Seven states and the District of Columbia have no timing restrictions on abortion, according to the Times.
Since Roe was overturned, it appears that public support for viability thresholds may be waning. A national poll of registered voters in June found stronger support for ballot language without a viability limit than identical ballot language that did contain a viability limit.
Public opinion research firm PerryUndem, which conducted the poll, said these and other data suggest a trend among pro-choice voters toward “wanting the government to stay out — entirely — of the business of restricting abortion.”
Key points about viability, according to ACOG
- Viability has different meanings early versus later in pregnancy. Early on, it addresses whether a pregnancy is expected to continue developing normally, based on hormone levels and ultrasound. Later, viability addresses a more complex question of whether a fetus can survive outside the uterus.
- No test can determine whether a fetus can survive outside the uterus. The odds that a fetus will survive are often based on clinical judgment, using data points that reflect a population average.
- During the “periviable” period, from week 20 to week 25 and six days of a pregnancy, survival rates rise dramatically, from near zero to as high as 76%, according to a 2017 Obstetric Care Consensus.
- Gestational age — the basis of some abortion restrictions — is just one factor that influences viability. Sex, genetics, weight, circumstances around delivery, and availability of a neonatal intensivist also play a role.