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The term viability has multiple meanings depending on the context of the discussion. To have a productive dialogue, it is important that both parties agree on what viability means prior to jumping into the conversation. Viability can address if a pregnancy is expected to progress normally. It can also address one’s ability to survive in their own environment. Neither of these are what’s being addressed within the context of an abortion discussion.

 

Instead, the term viability in the context of an abortion discussion is generally understood to mean a fetus has reached a stage of development at which it can survive outside of utero, with or without medical support, without the need for direct, physical attachment to the mother. This is usually discussed in terms of gestational age (typically accepted to be around 24 weeks) plus available neonatal care. As the American College of Obstetricians and Gynecologists (ACOG) explains, viability is not a single fixed moment and depends on many factors including gestational age, fetal health, and available medical resources.

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The Viability Argument

Before viability the fetus is not an independent life because it cannot survive outside of the mother’s body, so the mother’s bodily autonomy takes priority. After viability, the fetus can potentially survive apart from the mother, so its interests are morally stronger and the state may legitimately restrict abortion except to preserve the mother’s life/health. This was the basic moral calculus embedded in Roe v. Wade (1973) and later reaffirmed in Planned Parenthood v. Casey (1992).

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Historically U.S. case law treated viability as a key dividing line. Roe framed the constitutionally protected right to abortion as extending “until a fetus becomes viable.” Subsequent jurisprudence referred to viability as a threshold, though courts acknowledged it varied in practice. Pro choicers often refer to the historical precedent established through Roe and claim a limit for abortion had already established at viability. In reality, the Roe decision did not set an upper threshold for abortion but rather it set a minimum threshold prohibiting states from banning abortion prior to viability. Post viability, states were free to restrict or permit abortion as each saw fit. As a result, many states did restrict abortion at the earliest point while others instead permitted unrestricted abortion access throughout the entire pregnancy.​

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The viability argument as justification for abortion permissibility is typically argued in one of two ways, and to provide an effective critique it is important to understand exactly what the pro choicer is asserting ought be required.

1. Abortion should be legally permitted until the point of viability, after which the woman must continue the pregnancy to term

2. Abortion should be legally permitted until the point of viability, after which the woman should be legally permitted to terminate the pregnancy but must do so in a non-lethal manner.

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Critiques

Several simple critiques of the viability argument can be effective.

 

What constitutes viability?

A common question posed to a pro choicer who mentions the fetus’ ability to survive outside of the womb is how long must the newborn survive in order to be considered viable? Someone new to the conversation may claim any amount of time is sufficient, in which case that would apply throughout most of the pregnancy well before 24 weeks gestation. Even extremely premature newborns can survive for some amount of time outside of utero, whether it be hours, minutes, or seconds. A more educated pro choicer will typically assert that while there isn’t a specific length of time, to be viable means the newborn will not die from complications of underdevelopment due to the premature birth.

 

When is viability?

As stated previously, viability is not a single fixed moment and instead relies on a variety of factors like access to neonatal care, genetics, weight, etc. Gestational age is merely a helpful predictor in assessing whether a fetus may or may not typically survive under normal conditions. Viability in the United States currently is usually understood to be around 24 weeks. In the 1950s, it was 37 weeks. Due to medical advancements, in another 75 years viability will likely be even earlier than it is today. Does moral value change based on geographic location or advancements in medical technology? Does access to this medical care change a child’s moral worth? If yes, the pro choicer would be asserting that even today 24-week fetuses in developing countries like Nigeria where viability is 28 weeks have less moral worth than fetuses in the United States or other developed nations.

 

If a pro choicer bites the bullet and says yes, a fetus’ moral worth does change based on this access to medical technology, or that abortion should be permitted regardless of moral value if the fetus isn’t viable where it is, there are a few questions to ask that can further show the absurdity of this claim.

 

If a mother living in the United States is 25 weeks pregnant and wants an abortion, she is past the point of viability…in the United States. However, in Nigeria that same baby is not viable. Should this mother be able to travel to Nigeria then and have an abortion since the baby is not viable where the abortion is being performed? Aside from being absurd on its face, if permitted this would disenfranchise mothers who lack the funds or ability to travel internationally. While traveling internationally may be an extreme example, the question can be posed within the United States as well. Not all hospitals have neonatal units. Not all neonatal units are equipped with the same technology. If this same mother is 24 weeks pregnant and lives near a hospital without a neonatal unit, or worse an abortion clinic, should she be required to travel further to a hospital that does have the neonatal care necessary for the child to survive? If yes, why must she endure this supposed rights violation and remain pregnant longer? If she must remain pregnant longer for the child to survive, why shouldn’t she have to wait until she reaches full term? How long is it acceptable to make her remain pregnant to get to this hospital that can ensure the child’s survival?

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Why does viability matter?

Asking why viability matters in terms of whether it is permissible to have an abortion will typically throw the pro choicer into a circular argument. In almost every scenario, the pro choicer will not be able to explain why viability matters but will instead just repeat what viability is, which begs the question why viability matters and instead just assumes it does.

 

Instead, we understand dependency alone (like a newborn’s dependence on caregivers or disabled people’s dependence on supports) does not imply lack of moral status. If the logic is: cannot survive independently = no right to life, then many born humans with significant dependence would be excluded from moral protection, a conclusion most find unacceptable.

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What should happen after viability?

As previously stated, pro choicers arguing viability agree abortion should be permissible prior to viability, but they are split on what should happen afterwards.

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1. Mother should be required to carry the fetus to term. If the mother should be required to carry the baby to term, this calls into question why her bodily autonomy rights are superseded by the viability of the fetus.

2. Mother should be permitted to terminate the pregnancy but must do so in a non-lethal manner.

  

If the mother should be required to use a non-lethal manner to terminate the pregnancy, this would inevitably require her to continue the supposed rights violation (baby inside her without her consent) for some period of time.

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Example hypotheticals

• A woman lives next to an abortion clinic that can terminate lethally now, but the nearest hospital with a NICU is 45 minutes away.

• An abortion clinic could see the woman today and terminate lethally, but the hospital is busy and the earliest they could deliver the child is next week.

 

If the pro choicer says a woman must wait the 45 minutes until she gets to the hospital with a NICU, or wait a week until the hospital is available to deliver the child alive, how long must she wait? Indefinitely? Why not wait until full term?

 

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