Fox News is falsely claiming that a new study concerning the survival rate of premature newborns will have an outsized impact on abortion law.
A recent study published in the New England Journal of Medicine (NEJM) suggests that an extremely small number of premature babies born at 22 weeks can survive outside the womb with extensive medical intervention. The New York Times reported that, according to the study, "a vast majority died or suffered serious health issues" despite these best efforts. Because the Supreme Court has held that states cannot ban abortion prior to fetal viability, many pro-life advocates and now Fox News are already suggesting that the current medical standard of viability be lowered to 22 weeks - a conclusion the study does not support.
In fact, not only does this claim misrepresent the science, it also misinterprets how the Supreme Court has defined "viability" in its rulings on reproductive rights.
Although the overwhelming medical consensus is that viability is generally 24 weeks, and most states that regulate abortion use the 24-week date as a cut-off, the Supreme Court does not use this as a bright-line rule. But on the May 7 edition of Fox News' Happening Now, co-host Jenna Lee falsely claimed that it does, and suggested that the new study would accordingly upset the Supreme Court's rulings on reproductive rights. In an interview with Dr. Carla Simonian, Lee erroneously claimed that Roe v. Wade had set "28 weeks as viable has been a marker not only in the medical community but also in the legal community," and that in the court's 1992 ruling in Planned Parenthood v. Casey, the 28 week viability date "became 24 weeks."
Based on her misunderstanding of these decisions, Lee went on to wonder whether 22 weeks would become a new legal standard for viability:
In reality, the Supreme Court has never set viability at a specific week -- rather, it has acknowledged that viability is different for every pregnancy and is determined on a case-by-case basis by a woman and her doctor. The court specifically noted in Colautti v. Franklin that viability "may differ with each pregnancy" and that it "is reached when, in the judgment of the attending physician on the particular case before him, there is a reasonable likelihood of the fetus' sustained survival outside the womb."
Moreover, in Casey, the court held that a woman has the right to terminate her pregnancy before viability without interference from the state, but did not definitively set viability at 24 weeks or any other date. In short, the Supreme Court still defers to medical science, which is why Fox News' question, "Are we looking at even 22 weeks?" as the new legal date of viability is not only unsupported by the NEJM study, it also incorrectly explained how the constitutional right to abortion is protected.
While conservative politicians and right-wing media may attempt to exploit this study to promote more archaic restrictions on reproductive rights, the Supreme Court is not bound by its findings to revisit its reproductive rights jurisprudence. Life-saving advancements in medical science and technology are good news, but under current law, the point of viability continues to vary, depending on the pregnancy.