The Essential Holding of Casey: Rethinking Viability


The joint opinion in Casey v. Planned Parenthood included dicta reaffirming the rule that abortion rights extend to the point of fetal viability. This manuscript argues that the Court has never offered an adequate rationale for the viability standard, an unusually permissive line when compared with abortion laws in other countries. The Court's normal obligation to justify the lines it draws is augmented in light of the disparate impacts generated by the viability rule, which attributes constitutional significance to a characteristic that tends to vary with the race and gender of the fetus. The viability standard can also be challenged on the ground that it undermines legitimate state interests in regulating late-term methods of abortion described as "gruesome" by even those Justices most supportive of abortion rights.


Constitutional Law

Date of this Version

September 2006