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[Vol. 63:1250 decided that viability usually occurs at 28 weeks, but may even occur as early as 24 weeks.311 Indeed, relevant medical data amply support the Court's position, but only if viability is defined as the point beyond which survival after premature termination of gestation becomes highly likely. The concept of viability is not a static one. It differs for each individual and does not reflect a particularized state of being. Rather, it reflects the ability of an organism to cope with its environment and to survive in a hostile atmosphere with a minimal amount of outside support. To place the concept in an adult setting, an individual stranded without water or nourishment in the middle of a desert may fairly be termed "potentially" viable312 up until the point at which "actual" viability is proved by survival.313

In the case of the unborn, the environmental conditions are similarly adverse if gestation is terminated prematurely. The degree of outside support necessary to preserve the life of a premature infant varies inversely with the length of gestation prior to birth. As medical science makes further advances in the specialities of fetology, embryology, and perinatology the point of "viability" will continually be readjusted downard until the point at which the development of an artificial placenta would spell its coincidence with conception.

If the "compelling" point at which the state may exert its interests in the protection of the lives of the unborn is placed at viability, that point moves closer to the time of conception with each development in the treatment of prenatal and neonatal problems. Already the Court's guidelines are obsolete; viability has occurred even prior to 20 weeks in an infant weighing approximately 395 grams.814 Although such occurrences are rare, they will surely increase as science advances. Given all this, is the Court's rigid definition of viability to be given a frozen legal meaning separate and distinct from its commonly accepted and continually changing biological meaning?315 If so, what would

and Fellows of the American College of Obstetrics and Gynecology as Amicus Curiae, at 6-24, id.

311. Roe, 410 U.S. at 160.

312. The Court itself defined "viable" as "potentially able to live outside of the mother's womb, albeit with artificial aid." Id.

313. The term "potential" is used here to reflect the existence of a chance that viability may or may not actually be achieved. Identical terminology was employed by the Minnesota legislature when it set the point of "potential" viability at approximately 20 weeks of gestation. See MINN. STAT. § 145.411(2) (1973), ruled unconstitutional, Hodgson v. Anderson, 378 F. Supp. 1008 (D. Minn. 1974).

314. See note 307 supra.

315. In Hodgson v. Anderson, 378 F. Supp. 1008 (1974), the Court adopted a rigid trimester approach, construing the Supreme Court's statements on viability as absolute constitutional lines of demarcation limiting the exercise of state power to protect the unborn. Thus, 24 weeks was set as the absolute lower limit of viability, the court stating unequivocally that it does not occur prior to this time.

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support such a distinction?316

2. Legal Terminology and the Unborn

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Even more difficult than the questions surrounding the viability concept is the legal weight which seems to have attached to the varied terminology used to describe the unborn. At what stage does a fetus cease to be a fetus? When does it become a person? Of course, under Roe the obvious answer is: when it is born. But, when does birth occur? Is birth to be defined as physical separation of the fetus from its mother, or redefined to be the point at which a pregnancy is terminated by delivery of a "wanted" child? What then of "unwanted" pregnancies? Would the termination of such a pregnancy which results in a live infant's being separated from its mother produce a "person" or merely a live fetus? Is "fetus" a term which has taken on a legal significance of its own in the wake of Roe? In short, is the personhood of the infant which survives an abortion to be determined on the basis of its status as "wanted" or "unwanted"?317

316. The only rational basis which could be put forward in this area is that a flexible standard interferes with the Court's grant of the right to procure an abortion. This contention is easily set at rest, however, once the purpose of the abortion process itself is identified. If the purpose of an abortion is always to kill the fetus, state intervention in the process on behalf of the unborn in the period prior to viability would be unconstitutional under Roe. If this be the case, then Roe must be taken to require that viability be defined narrowly in order to vindicate what would then have to be termed the right to destroy one's unborn offspring. Cf. Abele v. Markle, 351 F. Supp. 224 (D. Conn. 1972).

The better view, however, would be to define abortion as the physical separation of mother and child. In such a case the woman's interests in termination of an unwanted pregnancy would be vindicated without interfering with the interests of her unborn offspring. Under such a policy, any legislative or judicial rule hampering the effectuation of the latter set of interests would not be related to any valid legislative or judicial policy. See e.g., MINN. STAT. § 145.412(3) (3) (1974) (requiring that, to the extent consistent with good medical practice, abortions after 20 weeks must be performed in a manner reasonably assuring live birth and survival of the fetus), ruled unconstitutional, Hodgson v. Anderson, 378 F. Supp. 1008, 1016 (D. Minn. 1974) (not reasonably related to maternal health and unnecessary in light of professional medical standards).

317. The concept of "unwantedness," although considered a crucial indication for legal abortion, is not supported by direct evidence showing it to be a real problem for the children involved; being unwanted does not lead inexorably to adverse reactions. Pohlman, Unwanted Conception: Research on Undesirable Consequences. 14 EUGENICS QUARTERLY 143 (1967); Forssman & Thuwe, One Hundred and twenty Children Born After Therapeutic Abortion Refused: Their Mental and Social Adjustment Up to the Age of 21, 42 ACTA PSYCHIATRICA SCANDINAVICA 71 (1966); Jackson, The Question of Family Homeostasis, 31 PSYCHIATRIC Q. Supp. 79 (1957). The foregoing sources are discussed in Nigro, A Scientific Critique of Abortion as a Medical Procedure, PSYCHIATRIC ANNALS, September 1972, at 22. See also David & Friedman, Psychosocial Research in Abortion: A Transnational Perspective, in ОSOFSKY & OSOFSKY, supra note 248, at 310, 316-18. The problems caused a woman by an unwanted pregnancy or the birth of an

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The questions raised in the preceding paragraph represent real issues as more becomes known of abortifacient techniques and their relative safety. Would it be permissible for a state to require that certain abortifacient techniques be employed if they offer a substantially greater chance of survival to the unborn? The answer under Roe appears to be in the affirmative, as long as such techniques do not offer greater hazards to the life or health of the mother.318 But what if the techniques which almost always assure fetal death are also extremely dangerous to the mother?319 May a state validly forbid their use?320 Even if the result is an increase in the number of "live borns"?321 Perhaps one approach to these questions would be simply to assure that all abortions are performed during the very early gestational period. But a governmental policy embodying such restrictions is precluded by the Court's determination that outright prohibition of abortions after the first trimester is unconstitutional. Thus, this approach does not offer any guidance where the late or mid-trimester abortion is performed. Neither does it offer any solution to the problems which must be faced when medical advances lower the point of viability to the extent that

"unwanted" child are not immune to treatment by means other than abortion. Nigro, supra note 254 at 37-38 (suggesting psychosocial help as an alternative).

318. The writer's suggestions as to answers to these questions may be identified by reference to Part V.

319. Two examples of such methods are abortion by use of the "super coil," a series of plastic strips which are inserted into the uterine cavity in order to induce the expulsion of the fetus; and saline-amniotic fluid exchange, a process which involves removing a portion of the amniotic fluid surrounding the fetus and replacing it with hypertonic saline solution. The saline is ingested by the fetus and causes its death by poisoning and dehydration; it is then delivered in normal fashion. The total complication rates for the two procedures were reported as follows: Super Coil-60.0%; Saline27.9%. HEW CENTER FOR DISEASE CONTROL, Morbidity and Mortality Weekly Rep. (22) 18: 159-60 (May 5, 1973), in ABORTION SURVEILLANCE: ANNUAL SUMMARY 1972, Table 20 (April 1974).

320. Saline abortions are no longer performed in Japan due to the high number of fatalities associated with this method. FAMILY PLANNING FEDERATION OF JAPAN, HARMFUL EFFECTS OF INDUCED ABORTION 4 (1966) (translated from the Japanese). A statute mandating abandonment of this practice in the United States would not preclude the abortion, merely the destruction of the child. The Court did not hold that the state has no interest in the preservation of the unborn even if they are not "viable." It merely held that the state's interest in protecting the fetus before viability is not sufficiently "compelling" to prohibit a woman's choice to terminate her pregnancy. Some courts have apparently misconstrued the extent of the Court's holding, for they have invalidated just such a law. See, e.g., Hodgson v. Anderson, 378 F. Supp. 1008 (D. Minn. 1974). See also Hallmark Clinic v. North Carolina Dep't of Human Resources, 380 F. Supp. 1153 (E.D.N.C. 1974) (three-judge court).

321. A common complaint about the growing use of prostaglandins, agents which induce contraction of the uterus, is that they result in an increase in the number of live born infants. This fact is considered by some to be a "significant clinical disadvantage" over the use of saline, which nearly always results in fetal death. See Guttmacher, Medical Aspects of the Abortion Experience, in OsOFSKY & OSOFSKY, supra note 248, at 535, 540-41.

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the trimester formulation collapses entirely. Again, using current techniques as a referent, the problems caused by the Court's overly rigid approach to the question might be avoided by reference to the "health" exception to the state's interests after "viability,"322 but only to the extent to which science is unable to perfect a "relatively safe" method of early termination which also assures the survival of the unborn child.

3. Experimentation: A Related Issue

The same problems arise in the area of fetal experimentation, a subject somewhat beyond the scope of this Comment. The related problems of abortion and experimentation will only be mentioned in order to demonstrate their identity. The difficulties in both areas arise from the legal status of the unborn, which may be alive both before and after it has been removed from its mother. Regardless of whether the individual becomes a "person" immediately upon separation from the mother,323 it seems difficult to consider post-termination experimentation upon living infants, at least where not directly beneficial to the individual involved, as anything but a gross violation of individual rights. Even condemned criminals are not forced to undergo lifejeopardizing experiments without their consent: the very young are entitled to equal solicitude. The consent of the mother in such a case could hardly be considered appropriate; since her desire is to terminate an unwanted pregnancy, her concern is obviously not directed to the welfare of the child.324

Pre-termination experimentation presents different problems. Roe v. Wade supplied no answers for situations where the interests of the unborn are set against those of a third party, or of society as a whole; Roe and Doe addressed only the conflict between maternal and state interests in the preservation of the unborn. It can hardly be alleged that the state would have no rational basis for rules prohibiting all such experimentation where not beneficial to the subject; the subjects are unquestionably human beings825 and are unquestionably

322. This assumes, of course, that extraction insuring survival would be more dangerous to the mother's health than other methods which might be utilized.

323. Physical separation has historically been defined as "birth." As long as the individual is alive at birth, it is a person. Roe does not hold to the contrary; it is wholly silent on the subject. Were the status of "person" to depend upon ability to survive (i.e. "viability"), Roe would indeed have implications far beyond abortion; human inability to survive because of physiological problems is not limited to the time immediately after birth.

324. Cf. Prince v. Massachusetts, 321 U.S. 158 (1944); Raleigh Fitkin-Paul Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964); In the Interest of Kenneth Clark, 185 N.E.2d 128, 131 (Ohio Common Pleas 1962). 325. Any member of the species Homo sapiens is biologically a human being, the

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[Vol. 63:1250 alive;326 Roe merely denied them the legal status of "person." A judicial interposition of a compelling state interest requirement to justify limits on pre-termination experimentation would mean that the courts are willing to extend the basic rationale of Roe and Doe as it relates to professional medical interests to an explicit recognition of a constitutional right to practice medicine which would include the prerogative of human experimentation, wholly independent of the woman's interest in procuring an abortion. The ramifications of such a policy are discussed more fully in Part IV.

Thus, we have seen that the decisions in the abortion cases have done little, if anything, to offer a meaningful solution to the central issue of the abortion controversy: the rights of the unborn. In the following sections of this work, several proposals for reform will be identified and discussed, with particular emphasis upon some of the considerations which should influence any decisions on their merits.

IV

CURRENT STATUS OF THE ABORTION CONTROVERSY

One may assume, and justifiably so, that the decisions in the abortions cases have done little, if anything, to put an end to the abortion controversy. Although there are some differences in their reasoning, most opponents of the Supreme Court's decision agree on one thingthe Court went too far.327 The exact nature of one's disagreement

unborn are Homo sapiens because they have two human parents. Any other definition of "human" reflects subjective evaluation rather than biological fact.

326. As an organism, the unborn individual is alive; an organism can only be alive or dead, there is no mediate state. See note 24 supra. By use of the term "potential life," one does not refer to a biological state of being, but rather to a perception of "life" as something more than merely being "alive."

327. E.g., Byrne, The Supreme Court on Abortion: An American Tragedy, 41 FORDHAM L. REV. 803 (1973); Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973) [hereinafter cited as Ely]; Epstein, Substantive Due Process by Any Other Name: The Abortion Cases, 1973 SUP. CT. Rev. 159, [hereinafter cited as Epstein]. Professor Ely summed up his dissatisfaction in the following manner: "[Roe v. Wade is] a very bad decision. . . . It is bad because it is bad constitutional law, or rather becausue it is not constitutional law and gives almost no sense of an obligation to try to be." Ely at 947 [emphasis in original]. Professor Epstein was even more emphatic:

Mr. Justice Blackmun cannot take comfort in the bland declaration that the Court "need not resolve the difficult question of when life begins," and still invoke a notion of privacy to decide the case. It may be well to note that philosophers, theologians, and physicians all have not reached agreement on the matter, but they do not have, nor do they pretend to have, the power to decide the question for us all. The Court admits to their ignorance. It is too much to ask the Court to share their impotence? . . .

Roe v. Wade is symptomatic of the analytical poverty possible in constitutional litigation. The foes of abortion may not have sufficient strength to overturn Roe v. Wade by constitutional amendment. But if they fail, it will not be because they are persuaded by anything the Court said.