When justices heard oral arguments in Dobbs v. Jackson Women’s Health Organization, one word came up more than any other: viability. The viability line was at the core of Roe v. Wade, and it’s been entrenched in the abortion rights movement ever since.
Julia Longoria: I'm Julia Longoria. This is More Perfect. Julia Longoria: Today’s episode comes from producer Gabrielle Berbey.Gabrielle Berbey: And it starts with a woman named Margot. She’s never set foot in the Supreme Court. But in 2014, whenwas still law, her first pregnancy made her confront a line the Court drew. That story began when she was about nine weeks pregnant.
Gabrielle Berbey:They knew there was a chance her baby had a rare congenital brain disease, but it was too early for a diagnosis and they didn’t know how severe it would be. Margot lived in Michigan, where abortion is banned after"viability," and her hospital wouldn't perform an abortion after 24 weeks.
Julia Longoria: The viability line was the line that protected the Constitutional right to most abortions for 50 years. But in[Archive Clip, Justice Sonia Sotomayor]: You want us to reject that line of viability and adopt something different.However you might feel about abortion, there’s no questionhas thrown abortion law in America into a state of chaos. State laws are changing across the country at a breakneck speed.
George Frampton: It sort of looked like a second-rate train station. I mean, really old white guys who didn't seem to be paying any attention to much. I was horrified. Gabrielle Berbey: Blackmun was softer. And George found that despite all his skepticism for the Court, he liked his boss. During summer recess of 1972, Blackmun holed up in the Mayo Clinic Library poring over books about the history of abortion. But he wasn’t on his own.George Frampton: And I was looking at facts and he was referring me to things too to look at. We did talk on the telephone maybe once every week or 10 days.George Frampton: The opinion he circulated was pretty thin. He didn't really resolve the issue of the extent to which abortion was a Constitutionally protected choice.
George Frampton: I have written essentially a limitation of the right, depending on the time during pregnancy when the abortion is proposed to be performed. I've chosen the point of viability for this turning point when state interests become competing for several reasons … Gabrielle Berbey: Actually can you just start with introducing yourself and saying who you are and what you do? Gabrielle Berbey: Judge Newman introduced viability into abortion law in a lower court. But his opinion came out a few months after George wrote about viability in his private letters to Blackmun.
Gabrielle Berbey: Well, this isn’t trial court, so they're not hearing from experts on a stand like you see in “Law & Order.” But we do know that Judge Newman did have an affidavit from a doctor that referenced the viability line.Gabrielle Berbey: Producer Alyssa Edes tracked down the only doctor Judge Newman cited in his opinion.Gabrielle Berbey: Dr. Virgina Stuermer. She’s 99, so she’s no longer practicing.
And the justices themselves have also had their doubts. Sandra Day O’Connor — the first woman on the Court — worried that using the viability line put the justices, quote, “in the business of being in a science review board.” Judge Jon Newman: We will be doing what judges do in all cases, and assessing the competing scientific views that are presented to us and deciding which one we think is more persuasive. We have to do that in patent cases, copyright cases, environmental cases all the time.
Justice Powell pointed to Judge Newman’s opinion which had just come out and said: I’d go with viability. Then Douglas comes back, and says: first trimester is better. Marshall steps in and is like: absolutely not. Another vote for viability. And Brennan is like: viability is okay with me, so long as we’re clear about the reasoning here — this is not about the woman, it’s about the state’s interest in protecting fetal life.
Julia Longoria: After the break, leaders in the anti-abortion movement converge with their sights set on[Archive Clip, Elizabeth Prelogar]: Viability is a principled line, your Honor, because in ordering …Julia Longoria: Viability — a line in a pregnancy drawn by a clerk and couple of judges in the ’70s — was at the center of. Mississippi tried to pass a ban on abortions before viability, which would violate.
Julia Longoria: In the opinion, Justice Alito wrote that, quote, “the viability line makes no sense,”and promptly destroyed it at the federal Constitutional level. He said rt was not adequately justified inBut for 50 years before this, the viability line lived as Constitutional law and in that time, it embedded itself in our culture. So deeply that even though viability seemed to show up out of nowhere, it came to define the entire conversation about abortion on both sides.
Gabrielle Berbey: He’s a lawyer now, but when he was younger, Alex was sometimes referred to as a Jonas brother of the evangelical movement. Alex Harris: And all of this was to prepare us to be senators and the U.S. Supreme Court justices and the presidents of our generation. And really, the vision was to take the land for Christ and for conservative values.
[Archive Clip, Dianne Feinstein]: I believe that abortions post-viability should not take place except in the rarest of exceptions.Gabrielle Berbey: To secure the survival of, Democratic lawmakers tried to make viability stronger by attempting to write it into federal laws. They never stopped to question if it even made sense.
Gabrielle Berbey: When the viability line was drawn, it didn’t change the fact that some people still seek later abortions. What it did do was make access to care even more difficult, if not impossible. Gabrielle Berbey: She was waiting for test results that would clarify her daughter’s brain condition, and she ran out of time in her state to have an abortion because her pregnancy crossed the viability line.
Person 1: I think I always go back to, we have to look at what drives someone to have an abortion, and why is that person at 26, 27, 28 weeks desperate to have an abortion? What are the circumstances? That's the key. Person 3: I remember feeling that the abortion that I had, because it was later, that it was the worse abortion. That it was less justified, that it was morally less okay.was the floor. But I never thought it was a good decision to begin with. Why did they do this? They screwed us all over.
Gabrielle Berbey: Abortion law was built on the assumptions of men — what they did and didn’t understand about medicine, about pregnancy, about loss. Liberals, who supported abortion rights, used that law, tried to make it stronger, and in doing so made those assumptions part of how the majority of Americans understand abortion. Conservatives focused their attention on that law to destroy it, to fight for a new legal and health system. And they won.
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