The Role of the Viability Line in Pregnancy Criminalization

This report will explore:

• How the integration of the viability line into legal frameworks is an

effective tool to subjugate, stigmatize, and punish women and pregnancy-able people.

• The pathways to pregnancy criminalization that are forged through the integration of the

“viability line” into law across the United States, namely: 1) viability lines explicitly providing embryos

and fetuses with legal rights at “viability”1; 2) viability lines implicitly providing embryos and fetuses with

legal rights at viability; 3) viability lines implicit or explicitly providing embryos and fetuses with legal rights,

depending on the state; or 4) viability lines leading to/being interpreted as/constituting an incremental step toward assigning

embryos and fetus legal rights at viability.

• How an act that would otherwise be legal becomes an illegal one solely because the person is pregnant with a “viable” fetus.

• How the State’s interest in preserving fetal life may be used to supplant a pregnant person’s

constitutional decision-making authority and health, thus undermining decision-making by

the pregnant person and leading to hospitals overriding advanced directives and sanctioning forced

medical procedures all in the name of preserving fetal “life.”

Prosecutions of pregnant people under certain state laws are justified by the concept that an embryo or fetus has legal rights that can be violated; under these frameworks, a fetus is always a potential victim with legal rights and a pregnant person who does anything the State determines is violative of those rights will be punished or have their rights curtailed because of their actions during pregnancy. For these reasons, this report examines the threats the viability line poses to civil and human rights, how it contributes to the corrosion of positive maternal health outcomes, and how it undermines pregnant women and pregnancy-able people’s inherent and inalienable rights.

Read more here.