Gonzales, Casey and the Viability Rule
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
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
Date posted: August 27, 2007 ; Last revised: September 29, 2015