Life Legal Files Amicus Brief Against Roe v Wade’s “Unworkable Viability Standard”


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Life Legal, a non-profit law firm, recently filed an amicus brief in Dobbs v. Jackson Women’s Health Organization. The brief supports Mississippi’s “Gestational Age Act,” which banned abortion after 15 weeks, and it was done on behalf of Dr. Robin Pierucci, a nationally recognized neonatologist and bioethicist. Life Legal drew attention to the “unworkable” viability standard the Supreme Court adopted in Roe v. Wade, which the Court later affirmed through Planned Parenthood v. Casey

“These cases rely on a highly subjective determination of a baby’s capability of meaningful life outside the mother’s womb,” the firm wrote in an update about the case on their website. “But who is to say which life has meaning? The Court? The State? The Abortionist?” 

Citing Cruzan v. Director, Missouri Department of Health, Life Legal pointed out how the case found that states do not have to make judgements about individual “quality of life,” but they can “assert an unqualified interest” in protecting human life  The Court had affirmed this interest in the Cruzan case when a disabled girl’s parents wanted her feeding tube removed. 

While the girl’s parents attested the quality of their daughter’s life was lacking, the Court held that a higher standard of evidence must be presented before the irreversible decision to take someone’s life could be made. By doing this, the Court asserted that mere perceptions about the worth of someone’s life should not interfere with the state’s ability to protect human life. 

This should seriously draw ruling like Roe and Casey into question, and Life Legal’s brief specifically takes issue with the cases’ definition of viability as the period where a baby can survive independently from the mother. Since viability is reliant on medical advancements more than it is the gestational age of the child, this means survivability is dependent on available care and the attitude physicians have regarding the child’s quality of life. 

Life Legal has worked with clients who have witnessed firsthand how this standard for life dehumanizes premature babies. The firm has filed complaints with the Department of Health and Human Services on behalf of parents whose children were denied life-saving care because medical professionals did not see them as worth saving. 

For example, the Providence Women and Children’s Services of Oregon has a survival rate of 0% for babies born at 22 weeks, but at other hospitals, it’s as high as 60%. This is because the hospital has been caught violating parents’ wishes for their premature child to be saved and has denied them medical care.  

But it is not only hospital staff that are denying the humanity of unborn children. Because of Colautti v. Franklin, the Supreme Court has enabled abortionists to determine fetal viability. As Life Legal illustrates, this is absurd. Abortionists routinely deprive unborn children of their lives, and they have a financial interest in stretching out the point of viability. Most abortion providers do not specialize in neonatology, and in some states, they do not even have to be licensed physicians.

 “…the Court’s holdings regarding viability in Roe, Casey, and Colautti are not valid and should long ago have been overturned,” Alexandra Synder, Life Legal’s Executive Director said.  “The current viability framework only works for the abortion industry. It certainly doesn’t work for unborn children and states trying to protect them.”

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