Also known as: viable · viabilities · fetal viability
Written by attorneys — see sources below.
2 senses
The stage of fetal development at which the fetus is capable of surviving outside the womb with or without artificial aid. Post-Dobbs, this developmental point no longer serves as a federal constitutional boundary. States may regulate or prohibit abortion at any stage subject only to rational basis review and other constitutional protections.
The stage of fetal development at which the fetus is capable of surviving outside the womb with or without artificial aid. Post-Dobbs, this developmental point no longer serves as a federal constitutional boundary. States may regulate or prohibit abortion at any stage subject only to rational basis review and other constitutional protections.
The capacity of land or a regulated use to produce sufficient economic return to avoid classification as a regulatory taking. Regulations that leave economically viable uses intact generally survive takings challenges under a multi-factor balancing test.
The capacity of land or a regulated use to produce sufficient economic return to avoid classification as a regulatory taking. Regulations that leave economically viable uses intact generally survive takings challenges under a multi-factor balancing test.
Each sense below has its own examples, sources, and questions.
Viktor Voronin, a physician in a state that enacted a total ban on abortion, performs the procedure on a patient at 18 weeks gestation. The state prosecutes him under the new statute. Because the fetus has not reached the stage of development allowing survival outside the womb, the ban is subject only to rational basis review and the prosecution proceeds.
Vincent Valdez challenges a state law requiring a 24-hour waiting period before an abortion at 15 weeks. The statute leaves the choice available before the fetus can survive outside the womb. The court sustains the regulation because it does not impose an undue burden on the pre-viability decision.
The Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989, established several requirements governing the performance of abortions within the Commonwealth. The Act required a woman seeking an abortion to provide informed consent after receiving specific information from a physician or counselor at least twenty-four hours before the procedure. It mandated that a minor obtain the informed consent of one parent, subject to a judicial bypass option. It further required a married woman to sign a statement confirming that she had notified her husband of her planned abortion, unless certain exceptions applied. The Act also imposed reporting obligations on facilities providing abortion services and defined a medical emergency exception to the various requirements. Before any of these provisions took effect, the petitioners brought suit in the United States District Court for the Eastern District of Pennsylvania. The petitioners were five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services. They sought declaratory and injunctive relief and challenged each provision as unconstitutional on its face. The District Court entered a preliminary injunction. After conducting a three-day bench trial, the District Court held all the provisions unconstitutional and entered a permanent injunction against their enforcement by Pennsylvania. The Court of Appeals for the Third Circuit affirmed in part and reversed in part. It adopted the District Court's factual findings and legal analysis except with respect to the spousal notification requirement. The Court of Appeals upheld the spousal notification requirement as constitutional and applied the undue burden standard in evaluating the provisions. The Supreme Court granted certiorari to consider the constitutionality of the challenged provisions of the Pennsylvania statute.
View caseVanessa Vega seeks an abortion at 30 weeks in a state that prohibits the procedure after viability except to save the mother's life. Medical evidence shows the fetus can survive outside the womb. The state enforces the ban and the court upholds it as within the state's authority to protect potential life.
In March 1970, Jane Roe, a single woman residing in Dallas County, Texas, instituted a federal action against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face. She also sought an injunction restraining enforcement of the statutes. Roe alleged that she was unmarried and pregnant. She wished to terminate her pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions. She was unable to obtain a legal abortion in Texas because her life did not appear to be threatened by continuation of the pregnancy. She could not afford to travel to another jurisdiction to secure a legal abortion. James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes. Two such prosecutions were pending against him in the Criminal District Court of Dallas County. He described conditions of patients who came to him seeking abortions. He claimed that for many cases he was unable to determine whether they fell within or outside the exception recognized by Article 1196 of the Texas Penal Code. John and Mary Doe, a married couple, filed a companion complaint also naming the District Attorney as defendant. The Does alleged that they were a childless couple. Mrs. Doe was suffering from a neural-chemical disorder. Her physician had advised her to avoid pregnancy until her condition materially improved. She had discontinued use of birth control pills pursuant to medical advice. If she should become pregnant she would want to terminate the pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions. The two actions were consolidated and heard together by a duly convened three-judge district court for the Northern District of Texas. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class and Dr. Hallford had standing to sue and presented justiciable controversies. The Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that the Texas criminal abortion statutes were void on their face. The court dismissed the Does' complaint while denying injunctive relief. The plaintiffs Roe and Doe and the intervenor Hallford appealed to the Supreme Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney cross-appealed from the grant of declaratory relief. Both sides also took protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision by the Supreme Court.
Vera Vargas seeks an abortion at 16 weeks in a state that bans the procedure after 15 weeks. She argues the cutoff prevents her from obtaining the procedure before the fetus reaches viability. The court upholds the statute under rational basis review because Dobbs returned regulatory authority to the states.
2 common questions
The stage at which the fetus is capable of surviving outside the womb. Before that point states may regulate but not prohibit. After that point states may prohibit except when necessary to preserve the mother's life or health.
Supporting sources
Dobbs returned authority to the states to regulate or prohibit abortion before fetal viability, subject only to rational basis review and other constitutional protections. The prior federal constitutional right recognized in Roe and Casey no longer exists.
Supporting sources
Victor Vargas owns a historic building that the city designates a landmark, blocking his plan to demolish it and construct a high-rise. The designation leaves him able to continue profitable operations in the existing structure. The court applies the multi-factor test and finds no taking because economically viable uses remain.
Virgil Vaughn owns parcels subject to a multi-year development moratorium imposed by a regional planning agency. The moratorium prevents immediate construction but leaves the land available for future economically productive uses once the restriction lifts. The court finds no taking because the parcels retain long-term economic viability.
In the early 1980s, the Tahoe Regional Planning Agency imposed two moratoria on development in the Lake Tahoe Basin. The first, Ordinance 81-5, took effect on August 24, 1981, and lasted until August 26, 1983. The second, Resolution 83-21, ran from August 27, 1983, to April 25, 1984. Together these measures prohibited virtually all development on sensitive lands for a total of 32 months while TRPA developed a comprehensive land-use plan. Lake Tahoe's exceptional water clarity had begun to deteriorate due to increased land development starting in the late 1950s and early 1960s. Runoff from impervious surfaces on steeper slopes and stream environment zones carried nutrients that promoted algae growth. In response, California and Nevada, along with the federal government, amended the Tahoe Regional Planning Compact in 1980 to require TRPA to establish environmental threshold carrying capacities and adopt a regional plan. The 1980 Compact amendment directed TRPA to adopt thresholds within 18 months and a plan within a year thereafter. It also included a finding that temporary halts on development were necessary to preserve the region's capacity for future development consistent with the ultimate plan. TRPA enacted Ordinance 81-5 in June 1981 after concluding it could not meet the original deadlines, and later adopted Resolution 83-21 when no plan was in place by August 1983. Petitioners, including the Tahoe-Sierra Preservation Council representing about 2,000 owners and a class of approximately 400 individual owners of vacant lots purchased before 1980 primarily for building single-family homes, filed parallel actions in federal courts in Nevada and California shortly after the 1984 plan was adopted. The suits were consolidated in the District of Nevada. The District Court found that the moratoria constituted categorical takings under Lucas because they temporarily deprived owners of all economically viable use. The Ninth Circuit reversed that determination. The Ninth Circuit held that the temporary nature of the regulations meant no categorical taking had occurred and that Penn Central analysis applied, though petitioners had not challenged the District Court's Penn Central findings. The Supreme Court granted certiorari to address whether the moratoria effected per se takings.
View case2 common questions
No. A regulation is not a taking if it leaves economically viable uses of the property intact. Courts then apply a multi-factor test weighing economic impact, interference with investment-backed expectations, and the character of the government action.
Supporting sources
Courts examine the economic impact on the owner, the extent of interference with distinct investment-backed expectations, and the character of the governmental action. If viable uses remain after these factors are weighed, no taking has occurred.
Supporting sources
…the abortion procedure in ways that are reasonably related to maternal health. Pp. 163-164. (e) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical…