The current record of a baby surviving is around 20-21 weeks.
The viability condition is one of the legal arguments people tend to attack. Justice Blackmun even wrote in a memo when drafting the verdict for Roe vs Wade: "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary."
They did end upon a viability criteria. The exact week has also changed since medical science has advanced in the last 50 years.
Re:Supreme Court Overturns Roe vs. Wade
by helloooooooo on Friday June 24, 2022 @11:57AM
(#31864289)
And these justifications from previous decisions (Obergefell, Loving etc… ) can be overturned with the current SCOTUS’s interpretation. In-fact, in the leaked draft, these were also on the docket to be targeted by the court. In todays assent, only Obergefell is being targeted. I wonder why that is? (Cough, Clarence Thomas)
So the current argument might be that since the constitution does not give the federal government the power to regular abortions (or to prevent states from regulating them), then that power to regulate them or not is reserved for the states to do as they please.
The prior argument (from Roe vs Wade) is that the US Constitution provides a right to privacy and that prohibiting or otherwise restricting abortions violates that right to privacy.
While there's no explicit right to privacy in the constitution, it could be implied by the 14th amendment: "... nor shall any State deprive any person of life, liberty, or property, without due process of law ..."
From the original Roe vs Wade opinion: "A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception." https://supreme.justia.com/cases/federal/us/410/113/