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Twenty-Week Abortion Statutes: Four Arguments, Randy Beck

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The Supreme Court has never justified the conclusion that the Constitution bars any substantial regulation designed to protect fetal life prior to viability. No majority opinion has ever offered a rationale for the viability rule, and the arguments recited in non-majority opinions are either conclusory or fail to distinguish viability from earlier lines that might be drawn. The most coherent academic attempt to justify the rule — Professor Laurence Tribe’s argument that a woman can “transfer nurture of [a viable] fetus to other hands” — rests on the erroneous assumption that a pregnant woman can arrange for premature delivery of …