Opinion: Sotomayor hearings: The question of viability

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Sonia Sotomayor’s exchange on abortion got the reporters who cover the Supreme Court buzzing. Why wouldn’t the judge simply go along with Sen. Tom Coburn’s assertion that the viability of a fetus is a legal consideration when abortion restrictions are concerned?

After all, that legal concept was at the core of Justice Harry Blackmun’s opinion in Roe vs. Wade, the opinon that established abortion as a constitutionally protected right, in which the high court defined viability as the point at which the fetus is ‘potentially able to live outside the mother’s womb, albeit with artificial aid.’ The court placed that moment at 28 weeks.

But it’s possible that Sotomayor views viability as a loaded term, especially when a stringent anti-abortion politician such as Coburn is doing the questioning. There long have been efforts in several states to redefine that term legislatively, especially involving the use of life-support machinery. And anti-abortion advocates such as Coburn maintain that modern medical technology has shown that viability occurs much earlier -- hence his ’21 weeks’ hypothetical.

Sotomayor, either of her own accord or on the advice of the White House, may not have wanted to be drawn into a debate as to when viability occurs -- and by implication, the very contentious legal and moral question about when life begins -- and how medical technology can influence that determination. But given Coburn’s passionate views on the subject (he’s an OB/GYN), Sotomayor may have to engage in the debate again during the second round of questions.

-- James Oliphant

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