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In the 1973 Supreme Court decision that legalized abortion in the United States, the Roe v. Wade decision determined “viability” as a critical marker for finding a balance between the right of a woman to end an unwanted pregnancy and the interests of the state:
“With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
While the Court identified “the end of the second trimester” as the point of “viability,” they provided no guidance as to the method of determining the gestational age of the pregnancy. Some states have enacted laws defining this point as 24 or 26 weeks; in April 2010 the Nebraska State Legislature identified 20 weeks as the point at which women could no longer choose an abortion.
However, there is no clear legal or medical definition of “viability.” During debates in Great Britain about whether to lower the gestational age of legal abortion from the existing limit of 24 weeks, the issue of viability was considered by the Commons Science and Technology Committee. The Committee found that “while survival rates at 24 weeks (the current upper limit for abortion) and over have improved since 1990, survival rates (viability) have not done so below that gestational point.” The Committee concluded that there was no scientific basis—on the grounds of viability—to reduce the upper time limit from 24 weeks.
The British Medical Association also weighed in during this debate. “It is the BMA’s view, based on the peer-reviewed published UK data, that there is no evidence of significant improvements in the survival of extremely preterm infants to support reducing the 24-week limit for legal abortion.”
A note on terminology and “late-term abortion”:
The terminology used to discuss abortions after the first trimester varies enormously. There is no agreement in the law or in the medical community about what constitutes the limit of the second trimester, for example. In scholarly journals, these abortions are variously referred to as “mid-trimester abortion,” “second-trimester abortion” (which is used to describe abortions up to 24 weeks or up to 27 weeks, depending on the writer or the state law) and late abortion. Within the mainstream media, the phrase “late-term abortion” is often used in articles about abortion policy and advocacy. These competing terms do not provide accurate clinical descriptions or contribute to public knowledge about abortion care and the differences at various stages of gestation. It is for this reason that we do not use the phrase “late-term abortion” here, and recommend against its use. Instead, we use and recommend the phrase “later abortion” to identify any pregnancy termination after 17 weeks of gestational age.
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Photo ©Vladimir Godnik/moodboard/Corbis
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