29 Pages Posted: 14 Jul 2013
Date Written: 2012
Under current Supreme Court precedent, although the state has an interest in the life of the fetus from the time of conception, it may not impose an undue burden on the ability of a woman to obtain an abortion prior to the fetus becoming viable. At that time, subject to a not-yet clearly defined health exception, a state may go so far as to proscribe abortion. Viability is defined as the fetus being able to survive on its own outside of the womb. The logic of the viability line is faulty, requiring a woman to carry a child to full term even though it can possibly survive separation from its mother. Viability is also difficult to define in any particular instance. The logic behind the viability line is that the fetus has a very high chance of reaching full term without happenstance and that therefore the mother should be required to carry it until birth. In other words, the state’s interest is in the survivability of the fetus until full term. Recent medical evidence has shown, however, that the onset of cardiac activity in the fetus is a much more determinable point in time to predict full term survivability. The state’s interest should therefore, be triggered when the fetus, in the uterus, has a detectable heartbeat.
Keywords: Abortion, viability, heartbeat, fetus, miscarriage, cardiac activity, implantation, survivability, health, risk, birth, potential life, undue burden, Casey
Suggested Citation: Suggested Citation
Forte, David F., Life, Heartbeat, Birth: A Medical Basis for Reform (2012). Ohio State Law Journal, Vol. 74, No. 1, 2012; Cleveland-Marshall Legal Studies Paper No. 13-255. Available at SSRN: https://ssrn.com/abstract=2279105