Gonzales, Casey and the Viability Rule

32 Pages Posted: 27 Aug 2007 Last revised: 29 Sep 2015

See all articles by Randy Beck

Randy Beck

University of Georgia School of Law

Date Written: March 24, 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.

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

JEL Classification: K19

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: https://ssrn.com/abstract=1008303 or http://dx.doi.org/10.2139/ssrn.1008303

Randy Beck (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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