Dr. Kermit Gosnell.

The illegal abortion trial of Dr. Kermit Gosnell horrified the nation. Gosnell was found guilty of delivering late-term live babies in abortion attempts and then killing them by snipping their spines. A co-worker said that, after aborting a 30 week fetus, Gosnell joked that the child was so big it could "walk to the bus."

Gosnell's trial has raised again the issue of abortion, and particularly what constitutes fetal viability. The Roe v. Wade and Doe v. Bolton cases in 1973 did not establish an unconditional right to an abortion throughout a woman's pregnancy. Instead, by 7-2, the justices ruled that "a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life." On that basis, it established a trimester system for legal abortion. No state could ban abortion in the first trimester of pregnancy, but it could place restrictions on abortion in the interest of the health of the mother in the second trimester and ban it completely in the third trimester. The third trimester prohibition was based on current medical evidence of the potential viability of the fetus at a time as early as 24 weeks.

In Planned Parenthood v. Casey in 1992, the Court declared that a state could ban abortion at the point of viability of the fetus. As a result, 41 states now ban an abortion of a viable fetus. Some define the point at which viability occurs. States such as Nevada, South Dakota, Massachusetts, and New York set 24 weeks. Others say the third trimester. Still others, such as Ohio and Wisconsin, leave that decision to a doctor.

In reality, the question of viability is not easy to determine. Medical advances for handling premature infants demonstrate that medical science has moved ahead of state abortion laws. Some premature infants have lived after delivery as early as 22 weeks.

The purpose of Roe was to balance the personal privacy rights of the mother with the rights of a potential human life who could survive outside the womb. However, state laws are not necessarily maintaining that balance; they should be based on advanced medical capabilities in preserving the life of a premature child.

Moreover, the question of viability should err on the side of caution. In other words, viability should be pushed back to a point where there is no chance of aborting an unborn child who could potentially live outside the womb. One means to do that is to adopt laws similar to those in most European nations, which are more stringent than the United States. They generally prohibit abortions after the first trimester of pregnancy. Abortion is available only in the first 12 weeks of pregnancy in France, Germany, Belgium, Denmark, Greece, Italy, Latvia, Lithuania, Hungary and Poland. After that, abortion is allowed in extreme circumstances such as a physician's determination that the fetus is damaged or there is serious health damage to the mother of continuing the pregnancy.

However, there is a legal question as to whether a state can ban abortion after 12 weeks. Arkansas has set fetal viability at 12 weeks on the basis that the fetus can feel pain by that point. In fact, North Dakota has passed a law potentially banning abortions after six weeks, using the argument that abortion should not occur after a fetal heartbeat can be detected. Idaho, Georgia, Alabama and Arizona have set the limit at 20 weeks. But all these laws are now winding their way through the judicial system. Ultimately the decision will be in the hands of the U.S. Supreme Court.

In the meantime, states that do not define viability should do so on the basis of current medical evidence, which should be earlier than 24 weeks. No child should be aborted who is viable to live outside the womb, unless there are serious extenuating circumstances. It is true that about 1 percent of abortions occur in this stage of a pregnancy. But 1 percent of 1.2 million abortions annually equates to 12,000 unborn children aborted each year. Except in extreme cases, none of those 12,000 children should be aborted when they are viable.

Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU. Email: [email protected]