I am referring to the majority opinion, section IX (
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VII enumerates reasons that had been advanced to explain and justify anti-abortion laws. One was the state's interest or obligation to protect prenatal life. This claim does not logically depend on the theory that a new human life begins at conception, for it could be claimed for potential life. IX then considers the issue of the fetus not having been recognized as a person within the language and meaning of the 14th Amendment. At the end of IX, the opinion considers as follows:
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Then, in X, the subject turns to when the state's interest in protecting the woman's health and when its interest in protecting potential life are compelling. For the latter, viability was selection "because the fetus then presumably has the capability of meaningful life outside the mother's womb."
For me, reading these ideas serially in the order presented, suggests the following. The state really doesn't want to endorse a theory that life as we recognize it begins before live birth. Examples in tort law are inconclusive, but viability shows up as a criterion for recovery for prenatal injuries, and recovery for wrongful death in the case of stillborns indicates that the fetus represents potential, not actual life. Similarly, in cases of inheritance by the unborn, the right to inheritance is contingent on live birth. So as the point at which the state's interest in protecting the potential life represented by the fetus is compelling, they select viability because that is the point at which the fetus can be presumed to have the capacity for life outside the womb, i.e., to survive live birth.
Maybe I am reading in, but the last thing in IX concerns reluctance of the state to recognize life before live birth or accord rights before it, the fact that viability or quickening comes up as an inconstant criterion in tort law, and ultimately rights of inheritance are contingent on live birth. So the fetus does not represent human life as we recognize it, but rather potential life. But at viability it's capable of surviving outside the womb, as in live birth. So that's where the state's interest in regard to the potential life is compelling.