Viability has been a legal bright line in judging abortion restrictions. Will it stay that way?

Shortly after Bryant signed the near total abortion ban into law, reproductive rights advocates sued to block the measure, arguing it is an unconstitutional pre-viability abortion ban.
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Anti-choice advocates in Mississippi recently upped the ante in overturning abortion rights, telling a federal court it should replace the “vague and constantly shifting concept of viability” with the detection of a “fetal heartbeat” as a point where states can begin to ban abortion.

The declaration came in court documents filed in opposition to a motion to block SB 2116. Signed into law by Gov. Phil Bryant (R) on March 21, it prohibits abortion after a “fetal heartbeat” has been detected. The statute defines “fetal heartbeat” as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac” and would ban abortion as early as six weeks into pregnancy, amounting to a near total abortion ban since many don’t know they’re pregnant at that point. 

Attorneys for the state concede they have been unable to identify medical research or data that show a fetus has reached the “point of viability” during the time period in which S.B. 2116 would operate. That’s why they’re urging the court to reject viability as the only proper consideration in determining the law’s constitutionality.

The law, scheduled to take effect July 1, contains an exception for instances when the life of a pregnant person is at risk, or to prevent “a serious risk of the substantial and irreversible impairment of a major bodily function” to the pregnant person.

Shortly after Bryant signed the near total abortion ban into law, reproductive rights advocates sued to block the measure, arguing it is an unconstitutional pre-viability abortion ban.

In its court filings, attorneys for the state concede that viability is a critical marker by which courts judge abortion restrictions. But, the attorneys argue, the time has come to change that standard. “Defendants dispute that viability is the only proper consideration” in determining the constitutionality of SB 2116, the attorneys argue.

“As a matter of science and medicine, life begins at conception,” the brief states. “As opposed to a vague and constantly shifting concept of ‘viability,’ detection of a fetal heartbeat is an objective milestone, and also an extremely accurate indicator of the likelihood a fetus will survive until birth,” the brief said. 

The anti-choice legal argument picks up on the political argument supporters of the near total abortion ban made when the bill first passed. “The heartbeat has been universally hallmark of life since man’s very beginning,” Bryant told supporters in the Mississippi capitol rotunda moments before he signed the GOP-backed measure.

Mississippi isn’t the only state to argue that courts should replace the viability standard with detection of a “fetal heartbeat.” “Sometimes, the evolution of the law requires bold steps,” Ohio Attorney General Dave Yost said in a statement regarding SB 23, a Republican bill that bans abortion at six weeks. Gov. Mike DeWine (R) signed the legislation into law.

“In the last 46 years, the practice of medicine has changed,” Yost continued. “Science has changed. Even the point of viability has changed. Only the law has lagged. This law provides a stable, objective standard to guide the courts.”

Attorneys challenging Mississippi’s near total abortion ban will have an opportunity to file a response before the court considers arguments and issues a ruling, likely before the July 1 deadline for the measure to take effect.