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Gonzales, Casey and the Viability Rule


Randy Beck


University of Georgia Law School

March 24, 2009

UGA Legal Studies Research Paper No. 07-011
Northwestern University Law Review, Vol. 103, No. 1, 2009

Abstract:     
Gonzales v. Carhart upheld a federal ban on intact D&E abortions. The dissenters in Gonzales accused the majority of ignoring the rule that a state may only prohibit abortion of a viable fetus, one capable of life outside the womb. The continuing discord over the viability rule highlights an issue that remains unsettled 34 years after Roe: Why may a state protect the life of a fetus after it reaches viability, but not before? Professor John Hart Ely long ago noted Roe's failure to justify the viability rule, observing that the Court's defense seems to mistake a definition for a syllogism.

This article contends that the Supreme Court has still never offered an adequate constitutional rationale for the viability rule, even though, under the reasoning of Casey v. Planned Parenthood of Southeastern Pa., a principled justification is a necessary foundation for judicial legitimacy. The Gonzales decision makes such a principled constitutional justification for the viability rule even harder to envision.

Number of Pages in PDF File: 32

Keywords: Gonzales v. Carhart, Abortion, Fetus viability, Roe v. Wade, Casey v. Planned Parenthood of Southeastern Pa.

JEL Classification: K19

working papers series


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Date posted: August 27, 2007 ; Last revised: August 12, 2011

Suggested Citation

Beck, Randy, Gonzales, Casey and the Viability Rule (March 24, 2009). UGA Legal Studies Research Paper No. 07-011; Northwestern University Law Review, Vol. 103, No. 1, 2009. Available at SSRN: http://ssrn.com/abstract=1008303 or http://dx.doi.org/10.2139/ssrn.1008303

Contact Information

Randy Beck (Contact Author)
University of Georgia Law School ( email )
Athens, GA 30602
United States

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