Young Fetus ‘Viability’ Unchanged, Court Told : Scientists Contend That Medical Gains Have Not Increased Chances of Survival Outside Womb
A group of distinguished scientists and physicians, including 11 Nobel Prize winners, told the Supreme Court Friday that--despite medical advances--a fetus cannot survive outside its mother’s womb before it is 24 weeks old.
The so-called “point of viability” of a fetus has not changed significantly since the high court’s 1973 Roe vs. Wade ruling making abortion legal, the scientists said in a friend-of-the-court brief. Critics of the abortion decision have maintained that it has been rendered obsolete by advances in medical technology that have moved back the point of viability.
The brief was submitted in conjunction with a pending case from Missouri (Webster vs. Reproductive Health Services, 88-605). Many legal experts believe that the high court will use this abortion appeal to revise the legal abortion standards it set in the landmark Roe ruling. The justices will hear arguments on the case April 26.
State’s Interests Cited
In the 1973 opinion, Justice Harry A. Blackmun wrote that abortion was entirely a matter for a woman and her doctor during the first trimester of a 36-week pregnancy. But the state’s “important and legitimate interests” in protecting the fetus become significant “at viability,” which he said occurred sometime during the second trimester.
The issue of “viability” has not proved to be crucial in the court’s later abortion rulings because the court’s majority has struck down virtually all state attempts to limit abortion. Nevertheless, critics of the Roe decision, including Justice Sandra Day O’Connor, repeatedly have asserted that Blackmun’s three-trimester framework must be reconsidered because of medical advances allowing ever smaller and younger fetuses to survive outside the womb.
The Justice Department, in a brief filed a month ago, also said that the “viability standard (in the Roe decision) is particularly unworkable as a constitutional reference point because . . . the point when a fetus may survive outside the womb with artificial aid changes with advancements in medical skill.”
But the Nobel laureates’ brief, which was signed by 156 other scientists and medical experts, said that there have not been great advances substantially improving the survival chances of very young fetuses.
“Although advances in technology have improved the chances of survival for premature births within the range of 24 to 28 weeks, the outer limit of viability at 24 weeks has not significantly changed,” the brief says. “Moreover, there is no reason to believe that a change in this outer limit is either imminent or inevitable.
“This court’s decision in Roe vs. Wade is as well-grounded in biological justifications today as in 1973, and the basic chronology of human development recognized in the court’s opinion remains accurate,” the brief continued.
Doctors have not been able to save fetuses younger than 24 weeks because critical organs, particularly the lungs and kidneys, are not developed enough. “Air sac development sufficient for gas exchange (in the lungs) does not occur until at least 23 weeks after gestation and often later,” the brief said.
The scientists admitted that they cannot answer the fundamental question of when a human life begins. “There is no scientific consensus” on that point and the answer “will depend on each individual’s social, religious, philosophical, ethical and moral beliefs,” they said.
Funding at Core of Case
The scientists’ brief was only one of many filed by interested parties in the Missouri case, which centers on that state’s attempt to prevent public funding of abortions.
By Friday, the case had drawn more than 60 briefs. The previous high mark was 58, filed in conjunction with the landmark Bakke case in 1978 on affirmative action.
Meanwhile, the Justice Department said Friday that it has recruited Charles Fried, solicitor general in the Ronald Reagan Administration, to present its arguments in the April 26 hearing.
Fried left office Jan. 20 to return to teaching law at Harvard University and the Bush Administration announced its intention to appoint appeals court Judge Kenneth Starr as his replacement. But Starr had not been confirmed by the Senate, leaving the Administration without an advocate before the court.
Staff writer Ronald J. Ostrow contributed to this story.
