For immediate release
Contact: media@pregnancyjusticeus.org

NEW YORK — Pregnancy Justice and Patient Forward have released an important new report, “The Role of the Viability Line in Pregnancy Criminalization,” highlighting how the “viability line” – used by some as a tool to ban abortion early in pregnancy and by others as a compromise to secure laws aimed at safeguarding abortion access – also enables the criminalization of pregnant people.

Viability lines have been used to override pregnant people’s medical decision-making power, ignore advance directives, perform forced cesarean surgeries, and to punish abortion seekers later in pregnancy. They have also led to the increased prosecution of women for all pregnancy outcomes because viability lines serve as a path to granting legal rights to fertilized eggs, embryos, and fetuses. And if a fetus is considered a separate person under the law, there are virtually no limits to what the state can do under the guise of “protecting” them.

“The policing of pregnant people is on the rise, and understanding the legal history of fetal viability plays a role in that. Legislating viability creates a physical conflict between a pregnant woman and her own body that shouldn’t exist, while also undermining the constitutional rights of anyone who can become pregnant in favor of their fetus,” said Karen Thompson, legal director of Pregnancy Justice. “The womb is being turned into a crime scene, where any action during pregnancy carries the potential for a prison sentence.”

“If you draw a line in the law, the state is going to police that line. It’s not a hypothetical. Decades of legal precedent, devastating cases, families separated, denials of care, and pregnancy punishment lay a clear case against viability lines. The impact to abortion care is just the tip of the iceberg. This report should make it unthinkable to ever accept fetal personhood at viability or any other point in pregnancy,” said Garin Marschall, co-founder of Patient Forward.

Fetal viability is a vague concept with no real clinical definition. As medical practitioners are well aware, any number of factors can affect a pregnancy, and there are no guarantees that a fetus will survive outside of the womb, despite passing the made-up threshold of viability. Leading medical organizations oppose policymakers including viability lines in laws because viability lines limit access to evidence-based care.

Viability was not constitutionally significant in abortion law until the U.S. Supreme Court’s 1973 Roe v. Wade decision, recognizing the fundamental right to abortion and the state’s interest in maternal and fetal health at the point of viability.

With the loss of this fundamental right in the 2022 Supreme Court Dobbs decision, and as more state laws and judicial decisions recognize “fetal rights,” the report provides much-needed analysis and context for how the viability line harms pregnant people, their pregnancies, and reproductive justice.

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Pregnancy Justice advances and defends the rights of pregnant people, no matter if they give birth, experience a pregnancy loss, or have an abortion. No one should lose their rights because of pregnancy.

Patient Forward is the leader in education, messaging, and policy analysis focused on abortion care later in pregnancy. We collaborate with organizations across the reproductive health, rights, and justice field to expand access, “unpunish” pregnancy, and win bodily autonomy.