(NewsNation) — Voters in several states will be deciding on the question of access to abortion on Nov. 5. At the heart of several of those measures is the question of fetal viability.
Voters in Nebraska, Montana, Missouri and Florida will be voting on measures that specifically include fetal viability as a method of determining when abortion will be legal or illegal, potentially setting up conflict over exactly when that occurs.
What is fetal viability?
In general terms, fetal viability is the determination that a fetus has a chance of surviving outside the uterus.
While often used in discussions about abortion, fetal viability is not a medical term and the American College of Obstetricians and Gynecologists opposes using it in abortion laws because of the lack of precise definition.
Determining fetal viability includes accounting for a number of factors beyond gestational age, including the size of the fetus, genetics and the availability of specialized neonatal treatment.
Fetal viability is also something that has changed over time based on medical advances. In the 1970s, viability was generally set around 28 weeks of pregnancy but has dropped significantly in subsequent decades.
When does fetal viability occur?
In medicine, fetal viability is determined based on clinical examinations and medical history, but it generally falls between 23 and 24 weeks of pregnancy.
However, the changes of pre-term birth survival are not the same across the board. An infant born at 25 weeks has a 67%-76% chance of surviving, according to the American College of Obstetricians and Gynecologists, while an infant born at 23 weeks has only a 23%-27% chance of survival.
Survival rates also don’t reflect the chance of serious medical complications or disability, with pre-term births more likely to result in neurodevelopmental disabilities like cerebral palsy and other health conditions.
Why does fetal viability matter to abortion laws?
Many abortion laws are currently written with limits set at a certain number of weeks of pregnancy. Laws are written using gestational age, which is tracked from a woman’s last menstrual period and therefore includes two weeks prior to conception, as opposed to fetal age, which is counted from conception.
Many states include limits much earlier in pregnancy, including Florida, which currently bans abortion after six weeks and Nebraska, which currently sets a 12-week limit.
Laws written with the term fetal viability sets up a potential conflict between officials tasked with enforcing laws based on broad guidelines and doctors who are determining viability for individual patients based on their health and medical examinations.
This kind of conflict has already been seen in states when it comes to abortion exceptions for the life or health of the mother. Fearful of litigation, doctors may delay providing an abortion until it the risk is so severe the pregnant person dies or suffers permanent health impacts anyway.
The debate over fetal viability
Within the medical community, there have been debates over the ethics of using medical interventions on deliveries at the earliest stages of possible viability when there is an extremely high risk of permanent disability as opposed to providing palliative care.
There are also debates over the use of the term in both pro and anti-abortion groups.
Anti-abortion groups have argued the vague nature of the term could be used to justify abortions later in pregnancy. Pro-abortion activists have argued the opposite, saying the law stigmatizes late-term abortions that are typically the result of severe fetal abnormalities or health risks and that it could be used to reduce the time when abortion is legal.
