By David G. Bjornstrom

Is Roe v. Wade on a Collision Course in the Supreme Court? 

June 7, 2021
Column: Catching Air

Supreme Court Justice Sandra Day O’Connor famously stated in 1983 that  Roe v. Wade is “on a collision course with itself” considering ongoing advances in medical science.

Roe contains the seeds of its own destruction since the Court’s basic premise, that abortions should be allowed before the baby is “viable” outside the womb, disintegrates over time with advances in medical science, genetics, technology and neonatal care.

The “viability” standard

In fact, scientific advances since Roe show that abortion at any stage of pregnancy, before or after viability, inevitably collides with the reality that the unborn baby is a new human person with its own DNA and separate identity from its biological parents.

Even in Roe, the Court admitted that “If this suggestion of personhood is established, Roe’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the fourteenth Amendment.”

Dobbs vs. Jackson Women’s Health Organization

The Court’s viability standard in Roe v. Wade and Planned Parenthood v. Casey will be tested this fall in the case Dobbs vs. Jackson Women’s Health Organization.

Dobbs vs. Jackson Women’s Health Organization involves a Mississippi law banning most abortions after the first 15 weeks of pregnancy, including abortions after those 15 weeks but before the unborn baby is “viable.”

While the Mississippi law does not go nearly far enough in protecting life, still allowing abortions before 15 weeks and for “medical emergencies or severe fetal abnormalities,”  Dobbs highlights the absurdity of the Court’s viability standard.

A closer look

Viability is usually defined in terms of the baby’s ability to survive outside the womb, a function of changing medical science that ignores the baby’s intrinsic humanity.

Roe and  Casey assumed, with no sound constitutional basis, that there is no right to life before “viability” since the unborn baby is dependent on its mother.  But that assumption is completely inconsistent with the fact that our laws routinely protect people who are dependent on others, including newborn babies, seriously disabled adults and even unborn babies in contexts other than abortion.

The predicted collision between  Roe and science is upon us as the personhood of the unborn baby becomes more and more obvious.

Personhood: Increasingly scientifically undeniable

Modern genetics has shown that every unborn baby is a unique human person from the moment of conception with its own individual DNA.  In vitro fertilizations show before our eyes that human life begins at conception.

The baby’s personhood is increasingly evident as technology shows that babies in the womb develop much quicker than previously thought, both before and after viability.

Ultrasound technology allows us to see pictures of in-womb development.

Medical advances have dramatically increased survival rates of premature babies, bringing the age of viability from 28 weeks at the time of Roe to something closer to 22-23 weeks now. This trend is likely to continue and future advances in medical technology may even include artificial wombs allowing babies to be viable from the time of conception.

These changes in the date of viability are irrelevant to the baby’s intrinsic personhood, but they increasingly discredit Roe since the moving target of viability cannot logically determine an unborn baby’s legal status as a Constitutionally protected “person.”

Common Sense: A person is a person, no matter how small (to quote Seuss)

The Supreme Court may have thought the country would get used to their decision in Roe over time, but the fact is that Americans have not gotten used to the idea of killing pre-born babies.

Dobbs cites various manifestations of the baby’s humanity long before it is viable outside the womb.

The unborn baby’s heart starts beating after just 5-6 weeks. It starts to move around in the womb at 8 weeks, and all basic physiological functions are present at 9 weeks.

The baby can open and close his or her fingers, make sucking motions and sense stimuli from outside the womb after 12 weeks, and feel pain as early as 12-14 weeks.

These prenatal developments do not just happen on their own. They happen because the unborn baby is already a human being from the time of conception.

The Supreme Court in Casey admitted that “the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”

Even if the Court could not bring itself to admit there is already a “child,” at least the Court acknowledged that “viability” is no magical turning point. The Court confirmed this in its 2006 case Gonzales v. Carhart which allowed bans on “partial birth” abortion, whether pre-viability or post-viability.

Dobbs also notes the striking legal inconsistency in the fact that conception, not viability, is used as a standard for other legal issues besides abortion.

An unborn baby’s viability is generally considered irrelevant in a wrongful death lawsuit when that baby is injured by another person but dies before reaching viability.

Nor is the unborn child’s “viability” considered relevant under probate law where the interests of unborn heirs at whatever stage are protected by the Courts.

Conception, not viability, is the relevant issue

The bottom line is that “viability” is a function of medical technology and newborn pediatrics, evolving and improving over time, wholly apart from the intrinsic value of the baby as a tiny human person from the moment of conception.

We should hope and pray that the U.S. Supreme Court will use the Dobbs case now to confirm that Roe was simply wrong to invent a supposed right to abortion that is nowhere found in the U.S. Constitution.

Or perhaps the Court was wrong in defining viability as something that occurs mid-way during pregnancy.

True “viability” is present at the moment of conception since the baby is all set to grow and be born if the abortionist will just stay out of the way.

Pre-term viability at any stage, whether 22 weeks or 28 weeks, assumes the need for significant medical help, just as full term birth requires significant newborn care.  Just as prenatal care requires something from the mother, so do laws requiring mothers to care for their newborn babies or prohibiting child endangerment.

Hopefully  Dobbs is just a start since the Mississippi law is clearly deficient in allowing any abortions at all, whether before or after 15 weeks.

One of the supporting briefs in the  Dobbs case, filed by Illinois Right to Life, states the real issue:

“There is a clear scientific consensus on the biological view that human fetuses are human beings from the moment of fertilization. It follows that each human fetus is a human being and person entitled to the right to life and to equal protection of the laws under the Fourteenth Amendment of the U.S. Constitution.”





David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »

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