Regulating Abortion Later in Pregnancy: Fetal-Centric Laws and the Erasure of Women's Subjectivity

Abstract

Context: In the United States, fetal development markers, including “viability” and the point when a fetus can “feel pain,” have permeated the social imaginary of abortion, affecting public support for abortion and the legality and availability of care, but the extent to which these markers describe and orient the experience of abortion at later gestations is unclear.

Methods: Using interviews with 30 cisgender women in the United States who obtained an abortion after 24 weeks of pregnancy, the authors investigated whether and how notions of fetal viability and/or pain operated in the women's lived experiences of pregnancy and abortion.

Findings: According to respondents’ accounts, fetal development–based laws restricting abortion based on purported points of fetal development operated as gestational limits, privileged the viability and pain status of the fetus over that of the prospective neonate, and failed to account for the viability and pain of the pregnant person.

Conclusions: The discursive practice of centering fetal development in regulating abortion access makes denial of abortion care because of the fetus's status conceptually available—even at the point of fertilization—and naturalizes the erasure of the subjectivity of women and others who can become pregnant.

In its June 2022 decision in Dobbs v. Jackson Women's Health Organization, the United States Supreme Court eliminated the constitutional right to abortion, reversing the nearly 50-year-old legal precedent established in 1973 in Roe v. Wade. Although Roe is commonly described as establishing the right to abortion, it in fact did not establish an unlimited right to abortion. Rather, alongside recognizing a right to abortion, the Court's Roe decision also asserted a point in pregnancy when the state's interest in potential life could outweigh the pregnant person's right to terminate the pregnancy: the point when the fetus could potentially sustain life outside the body of the pregnant person. At and after this point—deemed “fetal viability”—US states could legally ban abortion except when required to preserve the life or health of the pregnant person. When Roe was decided, the decision specified the point of fetal viability as “usually placed” around the 28th week of pregnancy (Roe, 410 U.S. at 730). Within two decades, that point had shifted to the 23rd–24th week for patients in the US health care system. Although a few fetuses have survived at earlier points, these rare cases have not altered the overall principle further (Partridge 2022).

Nearly 40 years after Roe, abortion rights opponents began successfully advocating in US state legislatures for earlier points in pregnancy when the state's recognized interest might invalidate the right to abortion, such as at the point when the fetus can purportedly feel pain (initially asserted to occur at 20 weeks of pregnancy) or when cardiac activity is detectable (at approximately six weeks of pregnancy), resulting in a patchwork of gestational limits across the country even before Dobbs (Ziegler 2020). These fetal development “markers” do not exist simply as legal constructs. They have permeated the US social imaginary of abortion, functioning as symbolic representations of fetal life (Crawford et al. 2021) and decreasing public support for legal abortion (Bueno et al. 2022).

Although socially accepted as a biological fact, fetal viability as a construct for regulating abortion access emerged not from medicine but from law (Garrow 2015). Likewise, the claim that fetuses can feel pain at 20 weeks of pregnancy (or before) does not reflect scientific consensus (Lee et al. 2005; RCOG 2022); nor does it feature prominently in pushes for abortion regulation outside the United States. Nonetheless, it has been discursively constructed as a biological fact in US abortion debates. Rather than being “natural,” both viability and fetal pain are dependent on technological interventions for their production (Jaeger 2019). Through legal, political, and medical discourses, the social constructs of fetal viability and fetal pain have been used to restrict the availability of abortion later in pregnancy and rendered it largely unavailable pre-Dobbs (Guttmacher Institute 2021) and unsupported by the general public (Bueno et al. 2022).

The idea that there is or should be a line premised in fetal development after which abortion should be broadly illegal and thus unavailable—commonly a “viability line” but also a “fetal pain line”—dominates the social understanding of abortion in the United States. While a few legal scholars have challenged the viability line, contending that the state's interest in restricting abortion is unspecified (Romanis 2020), it was largely unchallenged in the years following Roe. Indeed, the legitimacy of the viability line was a consistent answer to the questions for why Mississippi should not be allowed to restrict abortion in the oral arguments in the Supreme Court hearing of Dobbs (Heritage Reporting Corporation 2021).

However, the extent to which possible viability or fetal pain describes and orients the lived experience of abortion is an open question, particularly for pregnancies terminated at later gestations. Research has examined how the definition of viability, used to quantify fetal death and likelihood of life, has implications for the autonomy and agency of those experiencing involuntary loss of a pregnancy (i.e., miscarriage or stillbirth) (Jutel 2006) and their trajectories of care (Christoffersen‐Deb 2012; Middlemiss 2022). But other research demonstrates that gestational age does not consistently inform people's embodied experience of abortion (Beynon‐Jones 2017); nor do concepts of fetal pain predominate in second-trimester abortion and intensive neonatal clinical care (Andaya and Campo-Engelstein 2021). More broadly, time as something that can be measured objectively, linearly, and externally—particularly when it comes to growth and reproduction—has been critiqued as a patriarchal construct disconnected from life processes, which can be subjective, internal, and unpredictable (Forman and Sowton 1989). This suggests that linear, time-oriented concepts such as viability or fetal pain could have limited personal relevance to people considering abortion later in pregnancy, even as the concepts circumscribe whether, where, and how women and others with the capacity for pregnancy are able to end a pregnancy.

Drawing on interviews with 30 cisgender women in the United States who obtained an abortion after 24 weeks of pregnancy (i.e., after both the purported fetal pain and the purported viability lines), we conduct a sociolegal examination of whether and how notions of fetal viability and/or pain operated in respondents’ lived experiences of pregnancy and abortion. We find that the presumption of fetal viability and pain was operationalized as a gestational limit, serving as a salient cut point in respondents’ medical experiences of pregnancy and abortion. Yet despite its substantial impact on respondents’ experiences of seeking care, the concepts of viability and pain did not reflect their embodied experiences of pregnancy, attachment, or fetal independence. The ubiquity of these concepts in governing access to abortion later in pregnancy in the United States naturalizes the erasure of the subjectivity of women and others who can become pregnant.

Background: Viability and Pain as Threshold Concepts in US Abortion Law

The idea of “viability” invoked in Roe as a relevant component of clinical abortion care did not come from medicine itself. In fact, physicians have challenged the conceptualization of “viability” as binary and the utility of employing it in abortion care determinations (Han, Rodriguez, and Caughey 2018). “Viability” was not a part of the legal arguments in Roe either. Justice Harry Blackmun, the author of the majority opinion in Roe, borrowed the concept of “fetal viability” as a line to dictate the legality of abortion from a position offered by District Court Judge Jon O. Newman in Abele v. Markle (1972) (Garrow 2014, 2015). His deployment of “fetal viability” as a standard for restricting abortion was intended to be a legal compromise, balancing the rights of the pregnant person with the state's purported interest in fetal life (Garrow 2014). Its use in abortion care determinations, in other words, started in the law.

Formally, however, determination of potential fetal viability was left to the treating physician. Six years after Roe, the Supreme Court decision Colautti v. Franklin (1979) clarified that “neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant” (Colautti, 439 U.S. at 388). Thus, although the court introduced viability as a standard in abortion care access, it explicitly disavowed a singular legal determination of viability, deferring to medical assessment of fetal development. This is consistent with the assessment of viability in other jurisdictions wherein gestational duration, fetal health, fetal weight, and/or availability of neonatal care resources are relevant to determinations of viability (Jutel 2014). In US states with a viability limit, a small number of abortions after 24 weeks of pregnancy are regularly performed for pregnancies/fetuses that meet established criteria of nonviability (as well as for a handful of other reasons such as to save the life of the pregnant person).

While allowing limits on abortion after “viability” was supposed to represent a social compromise, it did not satisfy abortion rights opponents. The Roe decision catalyzed the US antiabortion movement (Blanchard 1994), which first unsuccessfully sought to eliminate the right to abortion through a national human life amendment (Hull and Hoffer 2010; Petchesky 1984) and then shifted to an incremental strategy to restrict abortion, always with the long-term goal of making abortion illegal everywhere.

In 1992, the Supreme Court's decision in Planned Parenthood v. Casey reaffirmed “the viability standard,” but it revised other aspects of how abortion law should be evaluated by the judiciary, notably shifting to an undue-burden standard (Hull and Hoffer 2010). This opened the door for the expansion of US state-level restrictions that would take effect before the fetus reached “viability.” One strategy for restricting abortion before “viability” was based on medical research on fetal surgery (Williams 2005) to assert a new point in fetal development: the point at which a fetus “feels pain.” This pain-sensing capability was proffered as evidence that abortion should be banned at and after this point (Cohen and Sayeed 2011; Watson 2012). Notably, this point was posited as occurring before viability at 20 weeks after fertilization (which, because of conventions in pregnancy dating based on last menstrual period, is approximately 22 weeks’ gestation).

Scientific consensus rejects this assertion of a fetus's ability to sense pain (Lee et al. 2005; RCOG 2022), and others have questioned whether such a point is valid for restricting abortion (Derbyshire 2008; Watson 2012). Nonetheless, in January 2010, the Nebraska legislature severely restricted abortion after the fetus had purportedly developed the ability to feel pain. Sixteen US states subsequently passed similar laws (Guttmacher Institute 2021). As previability bans, these laws were likely unconstitutional (Calhoun 2012). However, none reached the US Supreme Court, and they went into effect.

In recent years, US states have proposed, passed, and implemented laws with new fetal development–based limits on abortion, including Mississippi's 2018 law banning abortion after 15 weeks. The challenge to this law resulted in the 2022 Dobbs decision that overturned Roe. In 2021, as the Dobbs case was wending its way to the Supreme Court, Texas implemented a law that banned abortion after fetal cardiac activity is detectable. For most pregnancies, this occurs at about six weeks’ gestation (i.e., two weeks after a missed period). In practice, at the time of the Dobbs decision, 43 states had laws on the books severely restricting abortion after a specific point of fetal development (Guttmacher Institute 2021).

Scholarship hints at how the social construction of fetal development and personhood—construction accomplished in part through law (Halva-Neubauer and Zeigler 2010)—may contribute to abortion seekers’ understanding of the fetus and may thus affect their embodied experience of abortion (Siegel 2020), including in the later second trimester (Purcell et al. 2017). But research has not examined whether and how the premises of these bans are operationalized in the United States for women and others who can become pregnant and whether and how these premises resonate with people's lived experience of pregnancy and abortion seeking. Here we investigate the lived experience of negotiating bans on abortion that are premised on viability and fetal pain.

Methods

Between September 2016 and June 2018, we recruited people who had obtained an abortion after 24 weeks’ gestation by sharing a flyer describing the study with: (1) people who sought and were denied abortion care at three abortion facilities in a US state with a fetal pain–based abortion ban, who then obtained 24-plus-week care elsewhere; (2) patients at a clinic that provides abortion care throughout pregnancy; and (3) members of a private online support group for people who had had abortions following observation of a serious fetal health issue.

The flyer listed a phone number to call for more information and to enroll in the study. The first author screened prospective participants for eligibility, specifically that they were 18 years of age or older, were comfortable speaking in English, and had obtained an abortion after 24 weeks of pregnancy. Eligible and interested potential participants completed an oral consent and scheduled a phone interview for a future time at least three weeks after their abortion. We selected the phone modality because the focal population was geographically distributed, making in-person interviewing resource- and time-prohibitive. All eligible callers agreed to participate in an interview.

The first author conducted the interviews, employing a modified version of the timeline interview methodology (de Vries et al. 2016). The interview began by asking participants to talk about the points in their life that they think of as consequential to their pregnancy and abortion experience. This approach allowed participants to identify life moments that were meaningful to them, which, importantly, may or may not track to a normative understanding of key points in people's reproductive experiences and pregnancy decision-making. The first author followed up with probes aiming to capture the participant's experience of discovering pregnancy, deciding on abortion, seeking abortion care, receiving abortion care, and returning home after the abortion. With permission from participants, interviews were audio recorded. Participants were offered a $50 gift card to remunerate them for their time. We ceased recruitment in June 2018 after determining we had achieved theoretical sufficiency (Nelson 2017).

Interviews ranged in length from 48 minutes to two hours and 40 minutes, averaging about one hour and 35 minutes. All study protocols were approved by the University of California San Francisco.

Analysis

Interviews were transcribed verbatim and coded in Atlas.ti 8. The first author completed the initial coding, using a flexible coding framework (Deterding and Waters 2018) to identify all discussion of gestation-based denial of care, fetal health (current and projected), fetal pain, and the health of the participant while pregnant (current and projected). Both authors then independently reviewed the identified excerpts and collaboratively built a code book. The first author applied the codes to the transcripts, regularly checking in with the second author about emergent codes, consistency of code application, and possible redundancies. Broadly, coding focused on how respondents experienced and made sense of the concepts of fetal viability, fetal pain, and denial of abortion care.

Sample Characteristics

Thirty cisgender women completed an interview. Respondents ranged in age from 18 to 43 years. Most (n = 20) identified as white, five identified as Hispanic, three as Black, one as Asian, and one as biracial (Asian and white). Half had completed a four-year college degree. Most (n = 21) were employed outside the home; six, however, were unemployed and struggled to meet their basic needs, including one woman who was homeless. At the time of their abortion, 16 were married to cisgender men and 13 were already parents. They lived in 14 different states and traveled to five different abortion providers for care. At the time of their abortion, all respondents lived in states that banned abortion after (presumed) viability or fetal pain. Although most respondents had obtained their abortion within the year before the interview, six had obtained their abortion more than one year prior, with eight years the longest time reported since abortion. Thirteen had received prenatal care for the pregnancy before seeking an abortion. All thirteen of those respondents, as well as two additional respondents who had not received prenatal care, had evidence that their fetus had a serious health issue.

All names used below are pseudonyms. Reported ages are age at time of the interview, which may differ from age at the time of the pregnancy and abortion.

Findings

All 30 respondents were denied abortion care in their home state because of how their health care providers interpreted a fetal viability or pain law, even though those laws regularly allowed some exceptions. Subsequently, all respondents traveled to a different state without a fetal development–based abortion limit for their abortion. Broadly, the concepts of fetal viability and/or pain did not orient their experiences of or feelings about pregnancy and abortion. Instead, their accounts reveal how these legal ideas were operationalized as simple gestational limits, applied without assessment of individual fetal viability or capacity for pain; privileged concern for the fetus over concern for the neonate; and excluded consideration of the emotional and physical risks and experiences of the pregnant person. Although respondents who had received prenatal care—all of whom had an observed serious fetal health issue—tended to have more medical encounters and receive more information during the denial process, leading to more detailed accounts, these themes were apparent across the interviewees. We posit that the experiences of participants whose fetus was unhealthy enabled more explicit articulation of the broadly experienced mismatch between lived experience and the law.

Operationalizing Potential Fetal Viability and Pain as Gestational Limits

Although the legal construction of potential viability or presumed fetal pain is founded on case-by-case logic, participants experienced a de facto gestation-based limit on in-state abortion. Indeed, respondents’ accounts illustrate that, in their experiences, gestational time trumped other evaluations of fetal viability and pain assessment—or operated without any attempt at evaluating fetal viability or ability to experience pain. In states with a viability limit, participants were denied abortions after 24 weeks of pregnancy. Olivia, a 25-year-old white woman who lived in a state with a viability limit, explained that the staffer at the abortion clinic she visited “had me lay down, she did her jelly thing, rubbed the thing on my stomach and said, ‘Yeah, you're about 24 weeks. You're not having an abortion. You better start taking your prenatals now.’” Olivia's fetus was presumed healthy—she had not completed any prenatal screening or testing—but its health was not assessed. For participants who lived in states with a fetal pain law, the limit was operationalized as 22 weeks. Carrie, a 33-year-old white woman who lived in a state with a fetal pain law, described asking her doctor about her abortion options, should pending fetal testing results show a negative prognosis. In her account, the physician said, “’Well, the limit in [this state] is 22 weeks.’” Even as the health of Carrie's fetus was being assessed with an expectation of a health issue, her doctor told her abortion would not be possible because of her length of gestation. Others were not told their state's de facto limit; they were only told that their length of gestation put them beyond it and therefore made them ineligible for an abortion. The particulars of their fetus's viability or ability to experience pain—that is, the details of their fetus's development—were not clinically assessed.

These unilateral limits often came without explanation, presented as simply a firm restriction. As Monique, a 30-year-old Black woman in a state with a viability law, summed it up, “In [my] state, they don't do third-trimester abortions.” (Abortions after the 24th week of pregnancy are sometimes referred to as “third-trimester abortions,” although obstetricians typically consider 28 weeks’ gestation the third trimester of pregnancy.) Melanie, a 37-year-old white woman in a state with a viability law, recalled being told something similar. The provider who denied Melanie an in-state abortion explained, “‘It is not possible in [this state].’ They were pretty matter-of-fact about that.” Respondents’ accounts offer evidence that the concepts of fetal viability potential and/or ability to feel pain were operationalized as gestational limits. Yet in all these states, at least some abortions took place after the purported limit, evidencing that there was discretion in the application of these laws; that discretion, however, did not apply to respondents.

A handful of respondents were offered more detailed explanations for why they did not qualify as an exception. Most of these explanations were rooted in information about what their fetus was not. Amy, a 40-year-old white woman in a state with a fetal pain law, reported that her prenatal team performed “an amniocentesis to see if there were any chromosomal disorders or any other genetic issues that would allow the termination to take place in [my state].” Following the results, her physicians told her she could not get an abortion in her home state because “it had to be a case where you could prove that the baby wouldn't live [after birth] and nothing [no known fatal disorders or genetic issues] came back from the amnio.” Her prenatal care team, in other words, could not prove that her fetus was viable; they could only prove that it did not have any conditions known to make it nonviable.

Only one respondent was explicitly told she was denied an abortion because her fetus was presumed viable. Tonya, a 35-year-old white woman receiving care in a state with a viability law, learned at 20 weeks that her fetus had several severe fetal health issues. She wanted an abortion. However, as she explained, she ran into obstacles at her hospital:

As Tonya highlighted, that doctor's experience with a delivery in the second trimester of pregnancy could not be justifiably generalized to her pregnancy, which had features—namely fetal health issues—that made it not comparable to a typical pregnancy. Still, unlike other interviewees, Tonya received an explanation for her denial that was explicitly founded in a claim of fetal viability, even in the absence of evidence of viability.

Prioritizing Fetal Viability and Pain over Neonatal Quality of Life and Pain

In respondents’ experiences, viability and fetal pain laws prioritized the status of the fetus over the status of the neonate. Several of the women interviewed carried a fetus with an observed serious health issue, but evidence suggested that their fetus would not die in utero. Instead, they would have a live birth. However, those same testing and screening results showed that their baby would not be born healthy: their child was going to die, just not during pregnancy. While that information was relevant to their experiences of pregnancy and pregnancy decision making, it was not part of their encounters with the laws. Instead, fetal viability and pain were privileged over neonatal quality of life.

For example, based on the available medical information, Alexandra, a 33-year-old white woman in a state with a viability law, was told her fetus would not be able to move, speak, swallow, or coordinate his own breathing upon birth. He would be born alive, though, and could continue to live if permanently intubated upon birth. Because Alexandra's fetus's health issues were formally treatable, she asked her obstetrician if her fetus's diagnosis was incompatible with life; she said that by way of reply, he demurred and said, “I can't say that.” Permanent intubation, however, comes with its own likelihood of death. Alexandra's husband, a physician, knew that “to have a type 2 [medical device] in a trachea for that long—what it means is that if you have those interventions from birth, you are going to die of infection within two years.” Alexandra and her husband thus faced the prospect not of their fetus dying in utero, but of their baby being born and then requiring medical interventions that would later cause the child to die. As Alexandra explained of her and her husband's feelings on this prospect, “neither of us were willing to do that. . . . I think it's morally wrong to carry a baby like that.” To Alexandra and her husband, the certain death of their baby, who would never be able to move or speak, within two years of birth did not feel like “viability.” Their experience is an example of time displacement in gestation (Beynon-Jones 2012; van der Ploeg 2001), wherein the fetus's present status and future status are conflated. In this case, in contrast to research illustrating how the fetus's future status as a neonate is projected onto a point in pregnancy (van der Ploeg 2001), the present status of the fetus as “living” is projected onto the future. It thereby devalues and renders invisible the baby's expected experience after birth along with Alexandra's emotional and physical experience of continuing the pregnancy and watching her baby die.

Ashley, a 29-year-old white woman in a state with a viability law, struggled similarly with defining “viability” as survival at birth. She explained:

As she summed it up, “her [the fetus's] prognosis was very, very poor.” The hospital where Ashley was receiving prenatal care had a skilled provider able to perform abortions after 24 weeks’ gestation, but Ashley did not qualify for an on-site abortion because the physicians “wouldn't call it [the fetus's condition] lethal.” Even still, she said, “They told me the many ways in which this [condition] would kill her [the baby]: it's going to kill her this way, that way, the other way.” Ashley was frustrated, exclaiming, “but they're telling me it's nonlethal?” Her care team's semantics did not match the substance of what they were telling her about fetal independence.

This experience held for respondents who were given a longer life expectancy for their fetus, should they carry their pregnancy to term. Kara, a 33-year-old biracial woman in a state with a viability law, was told there was a “two to six [year] average life span to these children [born with this condition].” During that time, her child would experience chronic seizures, “and the seizures are typically difficult to control with medication. Babies with [this condition] sometimes struggle with swallowing and breathing.” Ultimately, she said, “I don't know that waiting for a baby to die is a humane or moral choice for me.” The irony in Kara's case was that she was offered an in-state abortion when she was 22 weeks pregnant based on initial testing that showed something of concern but that doctors evaluated as having a “70 percent chance of an acceptable quality of life.” By the time the diagnosis of a serious fetal health issue was made, Kara's doctors declined to provide her with in-state abortion care because she was past 24 weeks’ gestation. Kara was furious: “Who came up with this stupid deadline? What sense does 24 weeks make? . . . I can't imagine anybody looking at that and saying, ‘Yes, that was the desired outcome of this policy.’”

In addition to challenging the simplification of “fetal viability” to “survives birth,” several respondents highlighted the pain and suffering their fetus would experience if they continued their pregnancies, revealing how the laws in action privileged fetal pain over neonatal pain. Melanie shared that her pediatric neurologist said she could expect a child with her fetus's diagnosis to have regular seizures, cognitive disabilities, and an inability to control their own movement. Given this information, Melanie said, “I couldn't imagine bringing a child into this world who would suffer and not have cognition of why or be able to understand a good day from a bad day or know what was coming the next day.” Taking her own values into consideration, she said, “I can't give him that life of pain if I have a choice.” In describing the depth of suffering their babies would experience upon birth, respondents’ accounts challenged constructions of fetal pain as a justification for a gestational limit on abortion. For them, the potential of pain was the justification for abortion, not the reason to prohibit it. Their babies would experience significant and, to some respondents, unfathomable pain if they continued their pregnancies and gave birth.

These concerns were not limited to respondents whose fetus had an observed serious fetal health issue. Respondents whose fetus's health status was not assessed or was presumed healthy still worried about neonatal quality of life and pain should they continue their pregnancy. Julie, a 43-year-old white woman in a state with a fetal pain law, took regular medications for her genetic conditions. She talked to her obstetrician about the impact of her health condition and its management on her fetus: “My condition, it's genetic. There was a chance that the baby would have that and it's very painful—and you don't want your kid to suffer.” Victoria, a 26-year-old white woman in a state with a fetal pain law, described worry for a different kind of suffering if she gave birth: the suffering of deprivation. At the time she discovered her pregnancy, Victoria and her boyfriend were homeless and unemployed. She explained, “We could barely take care of ourselves, let alone anything else. . . . If I'm not able to give what I didn't have, then I wouldn't want to, you know, let it [a baby] suffer in any way.” Victoria spoke from experience, having had a childhood she described as “pretty hard . . . not a steady place to stay, didn't know if I got to eat that day.” She was removed from her parents’ custody and moved through various foster placements not for abuse but because of poverty, because “they [her parents] wasn't able to take care of us [my sisters and I] like they wanted.” She considered such a scenario likely if she gave birth, forecasting a life of suffering for her baby that she wished to prevent.

To the extent that abortion is banned after a developmental point because the procedure is asserted to cause fetal pain, these respondents’ accounts point to how such a myopic focus fails to attend to the predictable and anticipated suffering for a fetus of continuing the pregnancy and for a baby after birth.

Leaving Out the Pregnant Person

Respondents’ accounts highlighted an additional lacuna produced by the focus on the fetus in the construction and implementation of viability and fetal pain laws: they applied thresholds of viability and pain avoidance to only one of the entities in a pregnancy. These laws ignored the emotional and physical impacts of forced continuation for some pregnant people. In several cases, the continuation of the pregnancy would have compromised the respondent's own life and health. Julie shared that, when she learned she was ineligible for an in-state abortion because of her time of gestation, “I was desperate.” When asked by a counselor at an out-of-state abortion facility what she would do if she had to continue the pregnancy, she recounted, “I told her I would probably kill myself, which is honestly how I felt at the time.” Cristina, an 18-year-old Hispanic woman in a state with a fetal pain law, reported feeling acute desperation when she was denied abortion care and suggested she might have taken her own life had she been forced to continue the pregnancy. She said, “I did know that if abortion wasn't going to be an option, honestly I don't know that I would've been alive today.” Neither of these women had evidence of a fetal health issue (although, as noted above, Julie had reason to suspect one). They did nonetheless know that continuing the pregnancy was a serious mental health issue for them, which their state laws did not account for.

Two women described more concrete ideation of wanting to die when they thought abortion was unavailable. Jessica, a 31-year-old white woman in a state with a fetal pain law, said she felt relief when her abortion started. For her, that relief included the cessation of self-destructive thoughts she had been keeping to herself. She explained that when the abortion began, “I no longer felt as if I wanted to walk into the grocery store and randomly hope somebody was shooting up the place and that the bullets go through my stomach, because that is seriously where I was mentally before that, and I had never felt that way before.” Haley, an 18-year-old white woman in a state with a fetal pain law, actually took steps to end her life after being denied an abortion in her home state. Explaining her delay in contacting the out-of-state abortion facility she had been referred to, she said she spent the time “contemplating life, really . . . super depressed. Could not—barely felt like getting up in the morning. Thought about suicide. It was bad.” When asked if she did anything to act on her thoughts, she said, “I almost did, but my dad walked into the bathroom and told me to stop. I had a gun in my hand.” Her dad helped her contact and get to the out-of-state abortion clinic and end her pregnancy. Of that clinic, she said, “they saved my life. They definitely did. If it wasn't for them, I probably wouldn't be here.”

Continuing the pregnancy also entailed medical risks for respondents. Pregnancy always carries health risks (Raymond and Grimes 2012). Some respondents with an observed serious fetal health issue reported that this knowledge changed their assessments of the health risks of pregnancy. For example, Eliza, a 35-year-old white woman in a state with a viability law, had a health condition that made pregnancy a significant medical risk for her. She and her husband decided to take that risk to start a family. When they learned that her fetus was severely unhealthy and, although still alive in utero, would likely die before birth, their calculus around her taking on the risks of pregnancy changed. They no longer wanted to risk Eliza's health to continue an unhealthy pregnancy. Her doctors agreed. They expected she would have a late miscarriage, which, she said in a sarcastic understatement, “would not be great for my health.” Because of her existing health condition, laboring was dangerous, and she would have to have a cesarean —a major surgery. She related, “My doctor said, ‘If you make it to term and give birth, the baby would live for just a few short minutes before choking to death. And I can't imagine putting you through a C-section for that.’ Like, never mind the suffering, like needless suffering for the baby, like I would also have to go through a surgery for that.” Instead, she and her husband traveled out of state to get abortion care.

In other cases, the continuation of the pregnancy itself caused acute medical risk. Deborah, a 36-year-old white woman in a state with a viability law, had a higher-than-normal fluid volume from her pregnancy because of her fetus's health issue. At an ultrasound scan at around 26 weeks of pregnancy, she said, “I was essentially the size of a 40-week pregnancy. I had so much fluid . . . All the weight of the fluid was pushing on my artery, and so I came close to passing out.” Her prenatal team “drained some of the fluid off because I was starting to be at risk for rupturing of the membranes or preeclampsia [potentially dangerous pregnancy complications].” Even as her prenatal team anticipated Deborah's health would be at increasing risk if the pregnancy continued, they refused her an abortion because she was past 24 weeks’ gestation and there was no evidence that her fetus had a “lethal anomaly.” With her husband's encouragement, they traveled out of state for an abortion, rather than waiting for the pregnancy to more acutely endanger her life. Broadly, the abortion bans respondents encountered privileged fetal health and potential viability over that of their own as pregnant women.

Discussion

At the time of these interviews, at least some people in every US state were able to obtain an in-state abortion after 24 weeks of pregnancy. All interviewees, however, were denied in-state care—and they were denied because they sought care after either 22 or 24 weeks’ gestation. Collectively, their accounts illustrate how laws restricting abortion that are based in purported points of fetal development operated as gestational limits in practice. Moreover, these laws privileged the viability and pain status of the fetus over that of the prospective neonate and failed to account for the viability and pain of the pregnant person, erasing respondents’ subjective assessments of the viability of continuing their pregnancies. The operationalization of these laws—the laws in action, in other words—featured heavily in why respondents were denied abortion care by local health care providers but had little effect on how they experienced their pregnancy and pregnancy decision making.

While this study examined the experiences of US abortion seekers, our findings may have applications in other regulatory settings. Both in and of itself and through conversion into gestation-based limits on abortion, the legal construction of pregnancy and abortion as primarily (and perhaps exclusively) intelligible through recourse to the developmental status of the fetus produces a normative fetal-centric understanding of pregnancy, particularly in regard to abortion. This discursive practice builds on a broader contemporary antiabortion effort in the United States and elsewhere to privilege fetal life and naturalize the fetus as an independent person (Dubow 2010; Jaeger 2019; Layne 2000; Mason 2002; Ziegler 2015).

Additionally, it privileges a linear, time-based lens for understanding, discussing, and regulating pregnancy and access to abortion. Notably, this time-based lens is not rooted in the pregnant person's embodied experience of pregnancy. For example, we do not mark a pregnancy's beginning based on the point when a person cognitively recognizes they are pregnant, which may differ from when they become biologically pregnant (Watson and Angelotta 2022). Rather, pregnancy is predominantly described by externally assessed fetal development markers. In turn, abortion availability is regulated not in terms of the time between when someone chooses abortion and when they are able to obtain one but in terms of externally evaluated gestational age. Formalized and concretized notions of time have been objects of critique for feminist scholars (Forman and Sowton 1989) and scholars of racial inequality (Agathangelou and Killian 2016; Mahadeo 2019; Tadiar 2012). Scholars of reproduction, in particular, have interrogated the use of linear time in modern obstetrical practices and professional control of childbirth (Fox 1989), fetal surgery (van der Ploeg 2001), and abortion (Beynon-Jones 2012, 2017; Erdman 2017) and in advocacy related to human embryo research regulation and abortion gestational limits (Franklin 2014).

In line with Franklin's (2014) assessment of how biological “facts” of time can be used to advance religious arguments, this analysis shows how medicalized ideas in law become concrete as notions of time, which are deployed to restrict reproductive autonomy. By inserting time-based measures into the determination of abortion availability, these laws in action normalize the existence of a point in pregnancy after which abortion can be unavailable. This, then, reifies social understandings of pregnancy and abortion in relation to time markers read through the fetus.

Our study has several limitations. It is important to underscore that these 30 women did obtain abortions. For many people who cannot afford the costs of travel, viability and fetal pain restrictions on abortion force the continuation of undesired pregnancies (Kimport 2022; Upadhyay et al. 2014). Our data, however, cannot examine the contours of how these laws affect pregnant people who cannot travel for care following an in-state denial. Additionally, our sample largely consists of white, affluent, educated, and partnered cisgender women, although it also includes women of color and women living on very low incomes, including one woman who was homeless. We anticipate that structural racism and persistent class inequality informs how people who are financially struggling experience and navigate viability and fetal pain laws, limiting the transferability of our findings. Still, given the relationship between historical and contemporary structural racism, poverty, and wealth inequality (Baradaran 2017; Branch and Jackson 2020; Oliver and Shapiro 2006) and the costs associated with abortion travel (Barr-Walker et al. 2019), our study sample may actually reflect the effects of the unique barriers to accessing later abortion that members of socially marginalized groups face.

Finally, because we interviewed only people who obtained abortions, our sample does not include people for whom fetal development–based or gestation-based limits on abortion resonated (in whole or in part) and informed their continuation of pregnancy. Some people may have a personal gestational limit for abortion that accords with legal limits and thus may not experience gestational duration restrictions as problematic constraints. Our analysis cannot speak to their experiences. Even with these limitations, our findings capture the ubiquity of framing pregnancy and abortion in terms of presumed—or, even, generic—fetal development (see also Crawford et al. 2021) and the exclusion of at least some pregnant people's subjectivity (see also Beynon-Jones 2012), continuing a long-running pattern of silencing pregnant people as subjects in the politics of abortion (Jaeger 2019; Petchesky 1984, 1987; Reagan 1997).

We argue that the decades-long existence and normalization of the denial of abortion care because of the status of the fetus has made contemporary efforts to move the access line conceptually available. Following Dobbs, antiabortion US state legislators have leveraged this availability to ban abortion as early as fertilization, effectively banning all abortion. Among abortion rights advocates, too, the idea of a “common sense” limit has spurred infighting, including about whether a viability line should be codified in proposed abortion-supportive legislation (Fernando and Ballentine 2024). The framework of denying abortion care because of the status of the fetus, in other words, has pervaded abortion advocacy both for and against.

Yet having such a “line” is not inevitable. Canadian law, for example, does not implement a fetal development–based limit on abortion access. Although other aspects of service delivery in Canada pose challenges for abortion access, gestation and the concept of “viability” are not organizing legal principles in restricting access to abortion care (Horn 2021). As the United States debates the future of abortion rights and states seek to individualize their legal limits, our findings serve as a warning about the pitfalls of building from any premise of the reasonableness of a limit on abortion based on fetal development or gestation. Such framings do not perform as legal compromises (Romanis 2020). Instead, they reify a fetal-centric focus and devalue pregnant people's standpoint in pregnancy and abortion. Put bluntly, abortion rights advocates should rethink calls to “codify Roe” and its premise of fetal development-based limits. Our findings suggest that however such a line is drawn, it will result in the perpetuation of a fetal-centric framing of abortion rights and the naturalization of the erasure of pregnant women's subjectivity.

Acknowledgments

We thank Elizabeth Stockton for research assistance; Rebecca Kriz, Erin Wingo, and Heather Lipkovich for project assistance; Glenna Halvorson Boyd, Erika Christensen, Garin Marschall, and Katie Watson for feedback on earlier drafts; and the women who shared their stories. We received funding support from the Society of Family Planning (SFPRF 11–06) and an anonymous foundation. The sponsors had no involvement in the study design; in the collection, analysis, and interpretation of data; in the writing of the manuscript; or in the decision to submit the article for publication. The views and opinions expressed are those of the authors and do not necessarily represent the views and opinions of the Society of Family Planning Research Fund or the anonymous foundation.

References