April 2025
The idea that an embryo or a fetus has legal rights equal to those of a pregnant woman or pregnancy-able person is the very definition of fetal personhood.
(Pregnancy Justice, Fetal Personhood Legal Landscape. (https://www.pregnancyjusticeus.org/legal-landscape/)
Introduction
The concept of the fetal viability line is one that is inconsistently defined and erratically applied. This murkiness around viability exposes why the legislation of pregnancy timelines has multifaceted and dangerous consequences that extend far beyond access to abortion. This 45-page report investigates the history and implications of enshrining the viability line into law and unpacks the ways in which that entrenchment cultivates the criminalization of pregnant women and pregnancy-able people.
The report explores:
- How the integration of the viability line into legal frameworks is an effective tool to subjugate, stigmatize, and punish women and pregnancy-able people.
- The pathways to pregnancy criminalization that are forged through the integration of the “viability line” into law across the United States, namely: 1) viability lines explicitly providing embryos and fetuses with legal rights at “viability”1; 2) viability lines implicitly providing embryos and fetuses with legal rights at viability; 3) viability lines implicit or explicitly providing embryos and fetuses with legal rights, depending on the state; or 4) viability lines leading to/being interpreted as/constituting an incremental step toward assigning embryos and fetus legal rights at viability.
- How an act that would otherwise be legal becomes an illegal one solely because the person is pregnant with a “viable” fetus.
- How the State’s interest in preserving fetal life may be used to supplant a pregnant person’s constitutional decision-making authority and health, thus undermining decision-making by the pregnant person and leading to hospitals overriding advanced directives and sanctioning forced medical procedures all in the name of preserving fetal “life”. Prosecutions of pregnant people under certain state laws are justified by the concept that an embryo or fetus has legal rights that can be violated; under these frameworks, a fetus is always a potential victim with legal rights and a pregnant person who does anything the State determines is violative of those rights will be punished or have their rights curtailed because of their actions during pregnancy. For these reasons, this report examines the threats the viability line poses to civil and human rights, how it contributes to the corrosion of positive maternal health outcomes, and how it undermines pregnant women and pregnancy-able people’s inherent and inalienable rights to life.
[The following are excerpts taken from the first ten pages of the report to try and give a sense of the main issues it covers.]
The notion of “viability” is a relatively modern medical concept. The viability line is the product of decades of advancements in medical knowledge and technology. Potential fetal viability is generally understood as the point in pregnancy at which a fetus is considered capable of surviving outside the uterus. Clinicians use fetal viability to determine whether care is appropriate following a pre-term delivery. For much of the United States’ history, however, both the courts and lawmakers have used other markers to assign moral and legal significance to a pregnancy.
The question of viability has deep roots in notions of “quickening,” an ancient concept ascribing political, legal, and moral significance to the first in utero movements of a fetus felt by a pregnant woman to confirm the fact of a pregnancy and estimate a due date.
Quickening represented both a milestone in fetal development and the unknown moment where external actors could name a fetus and transform it into a living being independent of the woman carrying it.
The concept of “quickening” could not tell a physician or midwife whether a fetus was healthy or would survive birth. On the contrary, and as practitioners are well aware, any number of physiological or external factors can affect a pregnancy, and it is difficult to determine the cause of an adverse pregnancy outcome.
Accordingly, while quickening could be used to draw a line to regulate abortion, it could not support an evidentiary standard for injuries sustained in the womb prior to birth. Another approach was required to prove that the fetus was “alive” in the womb at the time of injury and that some material act was the proximate cause of its injury or death. In response to this dilemma, courts developed a “born alive” standard, whereby a claim could be made for prenatal injuries only if the child was subsequently born alive. As recently as the 1940s, most jurisdictions in the United States followed this common law “born alive” rule where a fetus only gained legal rights and living person status upon a “live birth”.
The American College of Obstetricians and Gynecologists (ACOG) notes viability can occur between 23 and 28 weeks of pregnancy and is a complex determination dependent on factors such as gestational age, genetics, weight, and available medical care: “[t]here is no definite diagnosis of viability and no test that can definitively determine whether a fetus could survive outside of the uterus.” As ACOG explains, “even with all available factors considered, it still isn’t possible to definitively predict survival” for a fetus deemed viable.
The legal concept of viability was not constitutionally significant within the context of abortion laws until the U.S. Supreme Court’s 1973 decision in Roe v. Wade. In Roe, the Supreme Court recognized a fundamental constitutional right to abortion, requiring that any state regulation of abortion be justified by a compelling interest. Under this new formulation, the states had an “important and legitimate interest in the life of the mother”, which became “compelling” at the end of the first trimester. Prior to that, states could not restrict the right to an abortion except to impose minimal medical safeguards. At the “compelling interest” mark, however, states could restrict the right to an abortion where the restriction was reasonable and narrowly tailored to protect the pregnant person’s health.
The [US Supreme] Court determined that the State had an “important and legitimate interest in potential life”, which became “compelling” at the point of viability because “the fetus presumably has the capability of meaningful life outside the mother’s womb”. After viability, the Supreme Court held, a state could prohibit abortions, except where necessary to protect the woman’s life or health. Under the Roe framework, “viable” was defined as any fetus “potentially able to live outside the mother’s womb, albeit with artificial aid”, and posited that viability is “usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks”. Two decades later, in Planned Parenthood v. Casey, the Supreme Court dismissed Roe’s trimester framework, focusing instead on viability once again ushered in by legal considerations of progress in science. Since deciding Roe, the Court held, “advances in neonatal care have advanced [the] viability [line] to a point somewhere earlier,” to perhaps “23 to 24 weeks”, but “the attainment of viability may continue to serve as the critical fact” for regulating abortion, partly because “there is no line other than viability which is more workable”.
In the decades that followed, state legislatures pushed the boundaries of what constituted an “undue burden” and “viability,” culminating in the Supreme Court’s June 24, 2022 decision in Dobbs v. Jackson Women’s Health Organization, which ended the federal constitutional right to an abortion. In doing so, Dobbs allowed states to regulate or ban abortion at any point in pregnancy without regard to viability. Despite the impossibility of determining a uniform point of viability, and despite the overturning of cases giving viability constitutional significance, the viability line remains relevant in abortion legislation across the country. Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Missouri, Montana, North Dakota, Rhode Island, Washington, and Wyoming, all prohibit abortion after “viability”, albeit with various exceptions for a pregnant person’s life and/or health. Many other states ban abortion at gestational ages that are functionally commensurate with viability lines: Ohio and Wisconsin ban abortions after 20 weeks (from fertilization); Kansas’ ban begins at 22 weeks; Massachusetts, Nevada, New Hampshire, New York and Pennsylvania ban abortions at or around 24 weeks; and Virginia bans abortion in the third trimester. The Supreme Court’s overruling of Roe v. Casey inspired advocates to safeguard the right to abortion in state constitutions. Those efforts to protect abortion, however, often came with a reintroduction of the viability line, effectively limiting the constitutional protections for abortions prior to viability. Indeed, in November 2022, Michigan voters approved a ballot initiative that established a constitutional right to “reproductive freedom”. However, the ballot initiative allowed the state “to regulate abortion after fetal viability”.
While the viability line has factored into several aspects of legal reproductive justice discourse and legal debates before Roe and post-Dobbs, with regard to cultural socialization and government intervention, the integration of the viability line must be clearly recognized as an effective tool to subjugate, stigmatize, and punish women and all pregnancy-able people on the basis of their reproductive capacity. “Fetal personhood” is the idea that fetuses (and, increasingly, embryos and blastocysts) are people, with all the same rights as anyone else. Proponents of fetal personhood principles often root their argument in the 14th Amendment, which guarantees equal protection under the law. Under this rubric, fetuses deserve to be treated on an equal footing as any person. This framework effectively grants a fetus the same rights and protections as a living child, thus subordinating pregnant women’s inalienable rights to those of the fetus they carry during their own pregnancy. While personhood is dangerous because it grants rights to a fetus (and, in some states, fertilized eggs and embryos), personhood also unlocks a whole panoply of state action, coercion, and violence under the auspices of “protecting” pregnant women”. Carried out to its logical end, if a fetus is considered a separate person under the law, there are virtually no limits to what state actors can do under the guise of protecting those “persons”; up to and including using deadly force to protect that “person” in danger of harm. The sort of dystopian extremes this could be taken to may seem far-fetched, but the ugly past realities of American history inform the scope of current possibilities, which include empowering law enforcement to protect fetal “persons” at all costs. Lest these warnings seem like mere hyperbole, Wisconsin’s Act 292 permits juvenile courts to take physical custody of an “unborn child”—and thereby physically detain a pregnant person, solely on the suspicion that the pregnant person may use or have used controlled substances. Under a fetal viability legal framework, before viability, a fetus is not a legal person; following viability, it is. This framework creates instant and unsustainable conflict: “[f]etal personhood and pregnant people’s personhood cannot coexist: fetal personhood ‘fundamentally change[s] the legal rights and status of all pregnant women’ and forces them to ‘forfeit’ their own personhood once fetal persons have taken up residence inside their bodies.’”
As Pregnancy Justice noted in its 2013 report on arrests of and forced interventions on pregnant people in the United States from 1973 to 2005: [C]onsistent with the goals of personhood measures, prosecutors, hospital attorneys, and judges . . . claim that [Roe] establishes that viable fetuses must be treated as legal persons fully separate from the pregnant woman. This mis-statement of Roe’s actual holding has been used in numerous cases as authority for depriving pregnant women of their liberty.
These prosecutions and interpretations of state law are justified by the concept that a fetus is a potential victim to be protected against all “outsiders” and thus a pregnant woman’s rights are curtailed to prevent her from becoming a perpetrator against her own pregnancy, and thus, her own body.
While this paper is not an exhaustive list of all the ways the viability line can and has been construed to criminalize and police people who are pregnancy-able, it provides an important starting point and diagnostic tool from which to grapple with the far-ranging implications—across all types of pregnancy outcomes—of enshrining the viability line in abortion rights legislation and beyond. For much of our country’s history, the viability line had no legal or policy significance; following the “born alive rule,” a fetus had no legal rights until birth. As science and medicine advanced, and as more jurisdictions began to recognize a concept of fetal “viability”, the fetus was transformed into a potential victim of a tort or a crime independent of the pregnant woman who carried it. This viability line was then introduced into abortion jurisprudence by Roe v. Wade, and, in the decades that have followed, has become an essential weapon of social control and harm against women, literally forming the basis of justification for incarceration, government interference, and the disregard of fundamental constitutional rights around end-of-life decision making and medical care. The throughline between these invasions of bodily autonomy is fetal personhood: viability approaches create a perfect framework to justify depriving pregnant women of their rights by arguing that once a fetus has reached viability, it transmogrifies into a person whose existence and legal rights take precedence over the woman carrying it. Our hope is that this report will provide important context and history to give a foundation to resist these dangerous and damaging efforts at controlling the lives and bodies of women, both in law and in life. We are grateful for the work of Pregnancy Justice legal director and lead author Karen Thompson as well as the contributions of Garin Marschall of Patient Forward and former Pregnancy Justice legal fellow Claire Bartholomew in the creation of this report. We are also grateful for the continued pro bono support of Janine Miller-Cherington and Sara Solfanelli of Schulte Roth and Zabel LLC. Thanks also to our Pregnancy Justice communications staff Zenovia Earle and Emma Evans and to Pregnancy Justice senior vice president Dana Sussman.
Examples from a range of US states regarding how this has played out in criminal charges follow in the second main section of this publication.
SOURCE: https://www.pregnancyjusticeus.org/wp-content/uploads/2025/05/Viability-Line-Report.pdf, May 2025.