How abortion laws focusing on fetal viability miss the mark on women’s experiences
- Abortion laws in the US that focus on fetal viability are often misguided and fail to address the concerns of pregnant people, instead prioritizing the development of a fetus over the woman’s health and well-being.
- The concept of “fetal viability” was created by lawyers in the 1970s and has since been applied to abortion laws without consideration for medical or scientific accuracy, leading to confusion among healthcare providers and patients alike.
- Women who have abortions later in pregnancy often report that fetal development markers are irrelevant to their experiences, as they may be carrying a fetus with serious health issues that would not survive outside the womb.
- Laws based on fetal viability can lead to women being denied access to abortion services or facing long delays due to bureaucratic hurdles, while also putting the woman’s physical and emotional health at risk.
- Research has shown that these laws often prioritize the fetus’s potential for survival over the pregnant person’s quality of life, leading to a “nonsensical and cruel” policy that disregards the complexities of human experience and the need for individualized decision-making.
During the 2024 presidential campaign, politicians and their surrogates repeatedly raised concerns about abortion later in pregnancy. The topic grabbed media attention and continues to inspire strong emotions, but most of the discussions include numerous misunderstandings.
These debates tend to focus almost exclusively on the status of a presumed healthy fetus: Does it have a heartbeat? Can it feel pain? Can it survive outside of the pregnant person’s body? Laws in the U.S. routinely use these fetal development markers to restrict abortion rights.
The problem with this framing, however, is that the preoccupation with these fetal development markers originated in law and politics, not in science or medicine. And, most importantly, not from the lives, needs and experiences of pregnant people.
We are medical sociologists who specialize in research on abortion. We noticed that fetal development markers shape the experience of pregnant patients. But that doesn’t mean these markers feel meaningful to people who get abortions.
We wanted to understand how patients who have abortions later in pregnancy, including from states with laws banning abortion after specified markers like “viability,” thought about their pregnancy and abortion. Do they think about abortion in terms of the development of their fetus? We analyzed interviews with 30 women who obtained abortions later in pregnancy to answer this question.
A history of limitations
Long before the 2022 U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision overturned the constitutional right to abortion, thousands of people each year in the U.S. were denied abortion services. Often, this was because they were beyond the pregnancy gestational limit imposed by their state’s abortion laws.
These limits were rooted in fetal development markers. For instance, some states such as Maine and Washington allow abortion until a particular developmental point, such as presumed fetal viability. This is the point in pregnancy when the fetus might survive outside the uterus. Even in states considered supportive of abortion rights, such as California and Illinois, limits based on fetal development are still in force today.
Since the Dobbs ruling, more abortion seekers are being denied the chance to get the procedure or facing long delays because of laws based on ideas about fetal development markers. But in fact, laws focused on fetal markers often end up jeopardizing the life and health of pregnant patients and furthering suffering, our study shows.
Fetal development markers explained
Fetal development markers sound like they are established clinical terms, but they aren’t. Some, like “potential fetal viability,” are concepts that started in legal thinking in the early 1970s. Then, when they were incorporated into limits on legal abortion, clinicians had to figure out how to apply them in a health care setting.
It’s worth noting that common shorthand is to assign a specific gestation to a particular marker – for example, saying that viability starts at 24 weeks. But this ignores the fact that fetal viability depends on many factors, including fetal weight, sex, genetics and availability of neonatal intensive care resources.
Only about half of infants born at 24 weeks of gestation will even survive long enough to be discharged from the hospital. Among infants born at 28 weeks, that rises to more than 90%. And of course, just looking at whether a baby was discharged from the hospital does not capture the acute impairments that babies born this prematurely experience and ongoing medical care they will require for much, if not all, of their lives.
Focusing on the fetus’s viability overlooks the baby’s viability
When we interviewed women who had abortions after 24 weeks of pregnancy, it became evident that these legal definitions were entirely irrelevant to the realities of their fetuses’ health.
Some described carrying a fetus with a serious health issue that doctors told them would lead to its death soon after birth, just not during pregnancy. For instance, one woman we interviewed learned that a child with her fetus’s diagnosis would be born alive but would have regular seizures, cognitive disabilities and an inability to control its own movement.
“I couldn’t imagine bringing a child into this world who would suffer and not have cognition of why, or be able to understand a good day from a bad day,” she said. To her, having an abortion was a way to protect her son: “I can’t give him that life of pain if I have a choice.”
Women in similar situations struggled with the way their states’ laws focused on fetal viability but ignored the fact that the life their baby would have would be very brief and characterized by deep, sometimes constant pain. To them, the law reduced “viability” to the ability to survive birth, without consideration of the quality of their child’s life and the degree of its suffering.
Overlooking women’s health
Research and journalism have documented harrowing obstetric emergencies and their physical consequences in states where abortion has been banned. These traumatic events are often directly linked to laws that, in effect, leave little to no room to protect the pregnant patient’s life and health. The women in our study repeatedly highlighted that when a state’s law emphasizes “fetal viability” at the time an abortion is sought, the pregnant patient’s future health – both emotional and physical – takes a back seat.
One woman we interviewed explained that she was so desperate not to be pregnant that she considered suicide because the fetal development-based law in her state meant she would not have access to a needed abortion. She had to travel out of state for her abortion. In her interview, she said the staff at the abortion clinic “saved my life. They definitely did. If it wasn’t for them, I probably wouldn’t be here.”
We also interviewed a woman who had a medical condition that made pregnancy and laboring very dangerous for her, but she decided to take that risk to start a family. Once it was clear that her fetus had a serious health issue and would die in utero or shortly after birth, she no longer wanted to risk her own health.
“Never mind the suffering, like needless suffering for the baby — I would also have to go through a cesarean surgery for that,” she said. But in her state, a fetal development-based law prohibited her from receiving an abortion. She, too, had to travel in order to get one.
Ultimately, the women we interviewed found the laws based in fetal development markers to be nonsensical and cruel when applied to their pregnancies. One woman we interviewed, whose fetus’s severe medical condition was only diagnosable by doctors after her state’s 24-week viability cutoff, put the issue in stark terms.
She was denied an abortion even after multiple specialists told her there was “100% certainty” her baby would have a bad outcome – an outcome that one specialist gently told her “no parent wants.” She had to fly halfway across the country to get the abortion she needed, far away from her support system.
She said, “What sense does that make? I can’t imagine anybody looking at that and saying, ‘Yes, that was the desired outcome of this policy.’”
Katrina Kimport receives funding from the Society of Family Planning and an anonymous private foundation.
Tracy A. Weitz receives funding from the Society of Family Planning, Education Foundation of America, and William and Flora Hewlett Foundation. She is affiliated with Cambridge Reproductive Health Consultants, Fund Access Forward, Democracy Forward, Abortion Bridge Collaborative (Women's Donors Network), Breast Cancer Action.