Part 1: The Viability Line

June 8, 2023·45 min·3 clips

Law clerk George Frampton reads aloud, for the first time in 50 years, the memo where he proposed the viability line to Justice Blackmun — and admits he doesn't know where he got the idea.

1. More Perfect investigates the origin of the viability line in Roe v. Wade — the point in a pregnancy after which states could restrict abortion — and traces how it was created, used, and ultimately discarded. 2. The episode is reported primarily by producer Gabrielle Burbey, who spent months in the Library of Congress reviewing 1,576 boxes of papers donated by Justice Harry Blackmun before he died. 3. The episode's central question is where Justice Blackmun got the idea for the viability line — a concept he used in the majority opinion but never explained in the text of Roe. 4. The episode opens with Margo, a Michigan woman whose first pregnancy in 2014 revealed severe brain abnormalities at 22 weeks; she was told she had two weeks to decide about abortion before crossing the viability line that barred the procedure in her state after 24 weeks. 5. Margo describes being told she needed to make a decision before she had enough medical information: 'The only thing that we were waiting for was the information that the MRI could give us about the brain development a month down the line.' 6. In the Dobbs oral argument, the word 'viability' was mentioned 111 times — more than 'abortion' (73 times), 'president' (24), or 'privacy' (10) — underscoring how central the line had become to the entire abortion debate. 7. Burbey found a key document in Blackmun's archive: a memo from law clerk George Frampton proposing the viability line, which Frampton had not seen in over 50 years when she read it back to him. 8. The memo states: 'I have chosen the point of viability for this turning point,' but when asked where he got the term, Frampton repeats 'I don't know' seven times before citing the general medical literature. 9. Around the same time, Judge John Newman of the Second Circuit independently chose the viability line as the dividing point in a lower court abortion case — without consulting any doctors or OBGYNs. 10. Newman explains that viability 'seemed to me the sensible line' because before that point, the fetus could not become a human being outside the womb, but he acknowledges, 'There's no magic to it.' 11. Justice Blackmun initially preferred a first-trimester line rather than viability, describing any chosen point as 'arbitrary'; Justice Powell pointed to Newman's opinion in favor of viability, and the final vote among justices eventually went to viability 5-2 over the first trimester. 12. Roe v. Wade was a 7-2 decision reading: 'A person may choose to have an abortion until a fetus becomes viable' — but doctors immediately pushed back, saying the line ignored scientific evidence, and the American College of Obstetricians and Gynecologists opposes legislation that uses viability as a standard. 13. The anti-abortion movement identified viability as an easy target: Alex Harris, a former clerk to Justice Kennedy and Justice Gorsuch, describes learning as a 12-year-old from the book 'Pro-Life Answers to Pro-Choice Arguments' that viability is an arbitrary cutoff no more morally meaningful than heartbeat or brainwave detection. 14. In response, abortion-rights advocates doubled down on viability, with Democratic lawmakers attempting to write the line into federal law — deepening its cultural status as the moral dividing point even as it remained medically fuzzy. 15. Law professor Khiara Bridges of UC Berkeley argues that viability has become 'the point at which the majority of Americans believe abortion is immoral,' a concept that did not exist in the national abortion conversation before Roe. 16. Margo eventually traveled from Michigan to Colorado for a third-trimester abortion at one of the few clinics in the country that performs them; she describes the clinic as looking 'like a bunker, designed to protect the staff and patients from bomb threats and shootings.' 17. At the end of his life, Frampton says he no longer believes viability is the right line: 'I never really thought about the viability of viability... there's nothing magical about viability.' 18. The episode is a restrained, methodical documentary — long interviews, archival recordings, and primary documents — rather than a debate about abortion policy. 19. Listeners interested in the legislative and legal history of Roe v. Wade, or the role of individual clerks and lower-court judges in shaping constitutional doctrine, will find the forensic approach compelling. 20. Those looking for a current-events policy discussion or a moral argument about abortion will find this episode focused on origins and historiography rather than advocacy.

As heard by us

A clear account of how viability entered abortion law through judicial judgment, not inevitability.

More Perfect treats the viability line as a judicial choice made under pressure, not a settled phrase handed down from constitutional law. The episode follows the search for where that boundary entered abortion doctrine, with Judge John Newman explaining how, in a lower court…

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You want the viability-line backstory, told by the judge who helped draw it.

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