Roe v. Wade’s antiquated law of ‘viability’ deadly for unborn infants

In December 2015, doctors discovered a lime-sized tumor in the right frontal lobe of my brain. A few weeks later, pathology confirmed the worst. I was diagnosed with a grade 4 glioblastoma multiforme (GBM), the most aggressive cancer, with only a 5.5% chance of survival after five years, according to the Mayo Clinic.

Despite these odds, I remain here today because my life is valued in our culture and protected by our law. This is true, even though statistically there is no chance of my ultimate survival. Throughout my battle with cancer, I’ve been praised as brave, and I’ve been given the best medical treatment available.

While my life is praised and protected, the lives of unborn infants are not protected under the law until “viability,” which is a standard set in 1973 when the U.S. Supreme Court decided Roe v. Wade. To the detriment of thousands of infants who could survive outside the womb, the viability standard has become grossly antiquated.

At the time of Roe, viability was around 28 weeks’ gestation. With almost 50 years of medical and technological progress since Roe, viability is now well below 28 weeks. When receiving active medical care babies as young as 22 weeks’ gestation have almost the same chance of long-term survival (greater than 12 months) than I did as a GBM patient. According to the New England Journal of Medicine, preterm babies born at 22 weeks’ gestation, receiving active medical treatment have a 23.1% chance of long-term survival, which is very close to the 25% of people diagnosed with GBM, who survive 1 year.

The odds of long-term survival for babies receiving active medical care after 22 weeks only increases from there. Babies born at 23 weeks’ gestation have a 33.3% chance of survival; babies born at 25 weeks’ gestation have a 72.3% chance survival. At 26 weeks’ gestation, 81.6% of babies born will live long-term, yet under the current law of the land, these infants are not protected. In fact, the United States is one of only seven countries in the world that permit elective abortion past 20 weeks.

Surely, the line of viability cannot be clearly defined in a way that fully protects babies in the womb and will only become more even more arbitrary in future years. As such, advancements in medicine and technology compel us to reexamine the standard created in Roe v. Wade.

Fortunately, the U.S. Supreme Court will have the opportunity to update and conform the law to our modern scientific advancements when it hears Dobbs v. Jackson Women’s Health Organization in its next term. Undoubtedly, this case will prompt debate and discussion and evoke a range of emotions. During these times, we must remember that we are a nation founded on the principle of equality. If we protect people like me with only a 5.5% chance of five-year survival, we mock our founding principles when we fail to protect babies with a greater chance of survival.

In 2017, while I was undergoing life-saving treatment for GBM, more than 10,000 babies lost their lives to abortion at or after 21 weeks’ gestation, according to an estimation based on the Centers for Disease Control and Prevention and the Guttmacher Institute. Many of these children had a greater chance of surviving long-term than I did. Yet, unlike me, they were not protected by the law.

The same day I was heralded a hero for making my five-year survival mark, others’ lives were terminated before they were even given an opportunity to put up a fight. At the very least these conflicting standards represent a strange inconsistency, and at the most a disgraceful hypocrisy.

• Jeanneane Maxon is an associate scholar at the Charlotte Lozier Institute.

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