The Viability Trap: Criminalising Pregnancy in Post-Roe America

Pregnancy policing and criminalisation are on the rise in the US – and at the heart of this trend is a seemingly technical legal concept: foetal viability. Far from being a neutral or scientific term, viability has become a legal flashpoint with deep consequences for the civil and human rights of pregnant people.

What Is Viability?

“Viability” refers to the point in foetal development when a foetus is considered capable of surviving outside the womb, with or without medical assistance. However, it’s not a fixed medical moment; it fluctuates with technology, healthcare access and individual foetal health. Despite this variability, the concept has been embedded into US law as a kind of moral and legal dividing line—most notably in Roe v. Wade (1973) and later in Planned Parenthood v. Casey (1992).

In Roe, the US Supreme Court recognised that the decision to continue or end a pregnancy belongs to the individual, not the government, and held that the constitutional right to privacy includes the right to abortion before viability. In Casey, the Court reaffirmed this right and introduced the “undue burden” standard: states could not place substantial obstacles in the path of someone seeking an abortion before the foetus becomes viable.

From Abortion Law to Criminal Law

While initially developed in the context of abortion rights, the viability line now plays a more expansive – and more dangerous – role. It gives legal grounding to the idea that at a certain point in pregnancy, the government has a legitimate interest in controlling pregnancy outcomes. That concept has bled into criminal law, enabling state authorities to surveil, investigate and prosecute pregnant people for a range of actions and outcomes.

Examples include:

Arrests for substance use during pregnancy, often charged as foetal endangerment, even when no harm occurred.
Prosecution for stillbirths, miscarriages, or refusing recommended medical interventions.
Criminal cases based on behaviour deemed risky during pregnancy, such as travelling, lifting heavy objects, or resisting caesareans.

A 2024 report by Pregnancy Justice documented how the viability framework is used to justify these actions, linking them to broader patterns of reproductive oppression.

Additionally, Oregon Capital Chronicle reported that over 200 women faced criminal charges related to pregnancy in just the first year after the Dobbs decision.

Civil Rights Collide With State Control

This isn’t just about abortion anymore. The expansion of state power under the justification of “protecting viable life” directly collides with fundamental rights, such as bodily autonomy, due process and freedom from unwarranted state intervention.

When the viability line is treated as the moment when a pregnant person loses full legal standing over their body and decisions, it opens the door to criminalisation based not on intent, but on outcome. In a legal system marked by racial and socioeconomic disparities, it’s no surprise that this criminalisation disproportionately targets poorer people, Black women, and other marginalised groups.

Why It Matters Now

Since the fall of Roe in Dobbs v. Jackson Women’s Health Organization (2022), US. states are no longer bound by the viability standard in regulating abortion. Yet, ironically, viability continues to be used to justify punitive laws. With no federal protections in place, states are increasingly emboldened to criminalise pregnancy outcomes under the same logic once used to restrict abortion.

This shifting legal landscape demands a re-examination of how viability is used in law—and whether it can ever coexist with a framework that respects women’s full human rights.

The Bottom Line

The concept of foetal viability has long been treated as a balancing point between state interest and individual rights. But in practice, it has become a lever for state control over pregnant bodies. Recognising this helps us understand how pregnancy criminalisation operates—and why the fight for reproductive justice must go beyond protecting abortion access. It must challenge the entire legal architecture that permits punishment in the name of “protecting life.”

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