Also known as: viable fetuses · fetal viability · viability
Written by attorneys · grounded in primary & secondary sources — see below
A developmental stage of an unborn child at which it has reached sufficient maturity to have a reasonable likelihood of survival outside the uterus. This stage marks the point at which states may regulate or prohibit abortion under rational basis review following the overruling of prior federal constitutional protections.
Valerie Voss, twenty-six weeks pregnant, sought an abortion in a state that had enacted a total ban after the federal framework changed. The clinic refused the procedure because medical evidence showed the fetus had reached viability. Valerie sued, arguing the ban violated her rights, but the court upheld the prohibition because the state had returned authority to regulate at viability.
Veronica Varela, at twenty-four weeks, sought a dilation and extraction procedure for a nonviable pregnancy diagnosis. The state prosecuted the physician under a ban on certain late-term methods. The court examined whether the fetus had attained viability before applying the prohibition.
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Vincent Vale operated a clinic providing abortions up to twenty-three weeks. State officials closed the facility for performing procedures after the point of viability without proper licensing. Vale challenged the closure, claiming the viability determination lacked sufficient medical evidence.
Viola Volkov, eighteen weeks pregnant, challenged a state waiting period law. The state defended the restriction by arguing it protected potential life even before viability. The court applied the viability framework to determine whether the regulation imposed an undue burden.
Valerie Viera sued after a car accident caused the death of her twenty-two-week fetus. The defendant argued no viable fetus existed to support a wrongful death action. The court dismissed the claim because the fetus had not reached the stage of independent survival.
Vaughn Valentine sought an abortion at twenty-five weeks without notifying her husband. The state enforced a notice law tied to viability determinations. The court assessed whether the viability threshold justified the notice requirement under the applicable standard.
Viability occurs when the fetus has a reasonable likelihood of survival outside the uterus, typically around twenty-four weeks. States regained authority to regulate or prohibit abortion at this stage after the federal constitutional framework changed. Medical evidence determines viability on a case-by-case basis.
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Most courts have held that a viable fetus is not a human being within the meaning of homicide statutes. This narrow interpretation prevents applying murder charges to the death of a viable fetus in many jurisdictions. Some states have created separate fetal homicide statutes to address this gap.
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Yes, states may prohibit abortion after viability under rational basis review. The authority to regulate at this stage returned to the states following the overruling of prior federal protections. Regulations must still comply with other constitutional limits such as equal protection.
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Courts generally require birth and live status for a decedent under wrongful death statutes. A viable fetus that dies in utero does not support such an action in many jurisdictions. Legislative changes may expand coverage in some states.
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…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…