Since June on The Pulse, we have been touring the United States, discussing the legal status of reproductive care, fertility, and abortion. This is on account of the the Supreme Court of the United States (SCOTUS) decision on Dobbs versus Jackson Women’s Health Organization. This was a case concerning a Mississippi law prohibiting abortion after 15 weeks of pregnancy, meaning 15 weeks counting from the first day of bleeding of the last menstrual period. 6 out of 9 justices voted to uphold the Mississippi, but 5 of those six also joined onto a majority opinion written by Associate Justice Samuel Alito overturning the 1973 Roe v Wade decision. Written by Associate Justice Harry Blackmun, the Roe decision had protected the right to abortion based on privacy protections resting on the Due Process Clause of the 14th Amendment. The right to choose was modified dramatically in 1992 with the SCOTUS decision on Casey versus Planned Parenthood of Southeast Pennsylvania. This lead to a 30-year era in which anti-abortion states tested the waters by passing increasingly restrictive laws, chipping way at the right to choose in those states, leading up to the recent Dobbs decision.
This leaves the US as a patchwork of drastically different legal situations. States with laws extremely hostile to abortion, and with it reproductive health overall, include Mississippi, Tennessee, Georgia, Alabama, Arizona, and Missouri. There are some states in which abortion rights are being upheld, despite strong majorities of anti-choice Republican politicians in the state legislatures and governors, because of either the state constitution or the court system. Such states include Kansas, Alaska, Montana, and Ohio. In Kansas, despite its strong Republican leanings and active anti-abortion politicians and organizations, the people out and voted strongly on a ballet measure in favor of keeping a guarantee of the right to choose in the Kansas state Constitution. Many states, such as New York, Connecticut, Illinois, Oregon, New Mexico, Washington, North Carolina, are very supportive of abortion and reproductive rights, both for their own residents and those from out-of-state. Of such states, many protect the right to choose up to the point of fetal viability (24-26 weeks gestation) or close to that point. Some pro-choice states, such as Oregon and New Jersey, have no limit on when during pregnancy one can choose to have an abortion, while other states have set the limit for abortion a few weeks earlier than viability, whereas Florida allows abortion up through the 15th week (results of the November 8 election could change this). Today’s highlighted state, Virginia is another example of a state that allows abortion up to fetal viability, although the official rule is that it is permitted until the third trimester. This actually means any time before the beginning of week 27, which technically could mean a little bit beyond the viability point.
Just a word about viability. This generally depends on lung maturity, which depends, in turn, on soapy substances called surfactant. If you think about inflating a balloon by blowing into it, recall how it is very difficult to inflate at the beginning, when the balloon is small and less flexible, but it becomes easier as the balloon gets bigger. Think of the alveoli (air sacs) of lungs like balloons that can be easier or harder to stretch. Alveoli that have surfactant and the correct proportions of different types of surfactants are more like the balloon when it is big and stretched; they stretch more easily, so air can enter. Alveoli that lack surfactant are more like the balloon when it is small; it takes much more force to inflate them. By giving certain medications to the mother when preterm birth is anticipated, by spraying artificial surfactant into a preterm infant’s lungs, and by putting a preterm infant on mechanical ventilation or extracorporeal membrane oxygenation (ECMO) and using other neonatal intensive care measures, doctors can push back the natural limits of viability by a few weeks. In other words, there is a good amount of wiggle room on viability, depending on the particular clinical situation.
As in all states with legal abortion, in Virginia, sometimes called the Mother of States, you can receive either a medication abortion, which is available up to gestational day 77 (the end of the 11th week of pregnancy). You also can have a procedural abortion, at any point, which in Virginia means during the first 26 weeks. Other than the time limit of the third trimester, Virginia’s other limitation concerns minors, defined as those under the age of 18. If you are a minor seeking an abortion, to avoid becoming a minor mother, the Mother of States requires that either one of your parents, or an adult sibling who lives with you, or a grandparent who lives with you, gives permission for your abortion. In addition to the permission requirement, Virginia also requires that a parent, or a grandparent or adult sibling who lives with you, is notified of your decision 24 hours before you receive the abortion. Generally, the notification and permission requirement would involve the same adult, but it doesn’t have to be this way. If it is not possible to meet these notification and permission requirements, Virginia also has a judicial bypass option, in which a judge can allow the abortion. Technically, the judge may decide that the young woman is not mature enough to choose abortion, but this places the judge in the situation of implying that the young woman is mature enough to become a parent. Given this absurdity, most judges grant the bypass, but this is by no means a guarantee.