HOW VIABLE IS VIABILITY? ARTIFICIAL WOMB TECHNOLOGY AND THE THREAT TO ABORTION ACCESS

• Published in: Michigan journal of gender & law Vol. 31; no. 1; pp. 1 - 49
• Main Author: Brown, James E
• Format: Journal Article
• Language: English
• Published: Ann Arbor Michigan Journal of Gender & Law, University of Michigan Law School 01-01-2024
• Subjects: Abortion; Decision making; Fetuses; Jurisprudence; Legislation; State laws; Uterus; Womens health; United States > US; Michigan
• ISSN: 1095-8835

The viability standard plays an important role in abortion access around much of the United States. In fact, before the Dobbs decision, the viability standard was the constitutional gatekeeper to abortion access and was uniform across the entire nation. Unfortunately, the Supreme Court has removed the constitutional right to abortion altogether. Nevertheless, I will provide an argument as to why Dobbs does not signal the end of viability-based abortion around the U.S. I will prove the importance of the viability standard even in a post-Dobbs society, highlighting its operation within various state laws, such as Michigan's Prop. 3, as well as its presence in federal bills aimed at codifying Roe. As an important factor in abortion regulation, it is important to note that viability is fluid and is subject to change depending on the context of medical technology. The artificial womb is a threat to the current understanding of viability, and its arrival is by no means far-fetched. The question this paper will address is how society should deal with viability after artificial womb technology becomes mainstream. The paper will explore potential alternatives to the viability standard, but ultimately conclude that viability ought to be retained where it is already used, and implemented where it is not, due to its inherent ability to fairly balance relevant interests in the abortion decision. This paper will advocate for reform envisaging legislative change to ground artificial wombs firmly within the private surrogacy sector, to distance them as being considered 'medical apparatus' capable of expediting viability.