Abortions Before Fetal Viability Are Legal: Might Science and the Change on the Supreme Court Undermine That?

Abortions Before Fetal Viability Are Legal: Might Science and the Change on the Supreme Court Undermine That?

The United States Supreme Court Building in Washington, D.C.

Unsplash

This article is part of the magazine, "The Future of Science In America: The Election Issue," co-published by LeapsMag, the Aspen Institute Science & Society Program, and GOOD.

Viability—the potential for a fetus to survive outside the womb—is a core dividing line in American law. For almost 50 years, the Supreme Court of the United States has struck down laws that ban all or most abortions, ruling that women's constitutional rights include choosing to end pregnancies before the point of viability. Once viability is reached, however, states have a "compelling interest" in protecting fetal life. At that point, states can choose to ban or significantly restrict later-term abortions provided states allow an exception to preserve the life or health of the mother.

This distinction between a fetus that could survive outside its mother's body, albeit with significant medical intervention, and one that could not, is at the heart of the court's landmark 1973 decision in Roe v. Wade. The framework of viability remains central to the country's abortion law today, even as some states have passed laws in the name of protecting women's health that significantly undermine Roe. Over the last 30 years, the Supreme Court has upheld these laws, which have the effect of restricting pre-viability abortion access, imposing mandatory waiting periods, requiring parental consent for minors, and placing restrictions on abortion providers.


Viability has always been a slippery notion on which to pin legal rights.

Today, the Guttmacher Institute reports that more than half of American women live in states whose laws are considered hostile to abortion, largely as a result of these intrusions on pre-viability abortion access. Nevertheless, the viability framework stands: while states can pass pre-viability abortion restrictions that (ostensibly) protect the health of the woman or that strike some kind a balance between women's rights and fetal life, it is only after viability that they can completely favor fetal life over the rights of the woman (with limited exceptions when the woman's life is threatened). As a result, judges have struck down certain states' so-called heartbeat laws, which tried to prohibit abortions after detection of a fetal heartbeat (as early as six weeks of pregnancy). Bans on abortion after 12 or 15 weeks' gestation have also been reversed.

Now, with a new Supreme Court Justice expected to be hostile to abortion rights, advances in the care of preterm babies and ongoing research on artificial wombs suggest that the point of viability is already sooner than many assume and could soon be moved radically earlier in gestation, potentially providing a legal basis for earlier and earlier abortion bans.

Viability has always been a slippery notion on which to pin legal rights. It represents an inherently variable and medically shifting moment in the pregnancy timeline that the Roe majority opinion declined to firmly define, noting instead that "[v]iability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." Even in 1977, this definition was an optimistic generalization. Every baby is different, and while some 28-week infants born the year Roe was decided did indeed live into adulthood, most died at or shortly after birth. The prognosis for infants born at 24 weeks was much worse.

Today, a baby born at 28 weeks' gestation can be expected to do much better, largely due to the development of surfactant treatment in the early 1990s to help ease the air into babies' lungs. Now, the majority of 24-week-old babies can survive, and several very premature babies, born just shy of 22 weeks' gestation, have lived into childhood. All this variability raises the question: Should the law take a very optimistic, if largely unrealistic, approach to defining viability and place it at 22 weeks, even though the overall survival rate for those preemies remains less than 10% today? Or should the law recognize that keeping a premature infant alive requires specialist care, meaning that actual viability differs not just pregnancy-to-pregnancy but also by healthcare facility and from country to country? A 24-week premature infant born in a rural area or in a developing nation may not be viable as a practical matter, while one born in a major U.S. city with access to state-of-the-art care has a greater than 70% chance of survival. Just as some extremely premature newborns survive, some full-term babies die before, during, or soon after birth, regardless of whether they have access to advanced medical care.

To be accurate, viability should be understood as pregnancy-specific and should take into account the healthcare resources available to that woman. But state laws can't capture this degree of variability by including gestation limits in their abortion laws. Instead, many draw a somewhat arbitrary line at 22, 24, or 28 weeks' gestation, regardless of the particulars of the pregnancy or the medical resources available in that state.

As variable and resource-dependent as viability is today, science may soon move that point even earlier. Ectogenesis is a term coined in 1923 for the growth of an organism outside the body. Long considered science fiction, this technology has made several key advances in the past few years, with scientists announcing in 2017 that they had successfully gestated premature lamb fetuses in an artificial womb for four weeks. Currently in development for use in human fetuses between 22 and 23 weeks' gestation, this technology will almost certainly seek to push viability earlier in pregnancy.

Ectogenesis and other improvements in managing preterm birth deserve to be celebrated, offering new hope to the parents of very premature infants. But in the U.S., and in other nations whose abortion laws are fixed to viability, these same advances also pose a threat to abortion access. Abortion opponents have long sought to move the cutoff for legal abortions, and it is not hard to imagine a state prohibiting all abortions after 18 or 20 weeks by arguing that medical advances render this stage "the new viability," regardless of whether that level of advanced care is available to women in that state. If ectogenesis advances further, the limit could be moved to keep pace.

The Centers for Disease Control and Prevention reports that over 90% of abortions in America are performed at or before 13 weeks, meaning that in the short term, only a small number women would be affected by shifting viability standards. Yet these women are in difficult situations and deserve care and consideration. Research has shown that women seeking later terminations often did not recognize that they were pregnant or had their dates quite wrong, while others report that they had trouble accessing a termination earlier in pregnancy, were afraid to tell their partner or parents, or only recently received a diagnosis of health problems with the fetus.

Shifts in viability over the past few decades have already affected these women, many of whom report struggling to find a provider willing to perform a termination at 18 or 20 weeks out of concern that the woman may have her dates wrong. Ever-earlier gestational limits would continue this chilling effect, making doctors leery of terminating a pregnancy that might be within 2–4 weeks of each new ban. Some states' existing gestational limits on abortion are also inconsistent with prenatal care, which includes genetic testing between 12 and 20 weeks' gestation, as well as an anatomy scan to check the fetus's organ development performed at approximately 20 weeks. If viability moves earlier, prenatal care will be further undermined.

Perhaps most importantly, earlier and earlier abortion bans are inconsistent with the rights and freedoms on which abortion access is based, including recognition of each woman's individual right to bodily integrity and decision-making authority over her own medical care. Those rights and freedoms become meaningless if abortion bans encroach into the weeks that women need to recognize they are pregnant, assess their options, seek medical advice, and access appropriate care. Fetal viability, with its shifting goalposts, isn't the best framework for abortion protection in light of advancing medical science.

Ideally, whether to have an abortion would be a decision that women make in consultation with their doctors, free of state interference. The vast majority of women already make this decision early in pregnancy; the few who come to the decision later do so because something has gone seriously wrong in their lives or with their pregnancies. If states insist on drawing lines based on historical measures of viability, at 24 or 26 or 28 weeks, they should stick with those gestational limits and admit that they no longer represent actual viability but correspond instead to some form of common morality about when the fetus has a protected, if not absolute, right to life. Women need a reasonable amount of time to make careful and informed decisions about whether to continue their pregnancies precisely because these decisions have a lasting impact on their bodies and their lives. To preserve that time, legislators and the courts should decouple abortion rights from ectogenesis and other advances in the care of extremely premature infants that move the point of viability ever earlier.


[Editor's Note: This article was updated after publication to reflect Amy Coney Barrett's confirmation. To read other articles in this special magazine issue, visit the e-reader version.]

Josephine Johnston
Josephine Johnston is Director of Research and a Research Scholar at The Hastings Center, an independent bioethics research institute in Garrison, New York. She works on the ethics of emerging biotechnologies, particularly as used in human reproduction, psychiatry, genetics, and neuroscience. Her scholarly work has appeared in medical, scientific, policy, law, and bioethics journals, including New England Journal of Medicine, Science, Nature, Hastings Center Report, and Journal of Law, Medicine and Ethics. She has also written for Stat News, New Republic, Time, Washington Post, and The Scientist, and is frequently interviewed by journalists. Ms. Johnston holds degrees in law and bioethics from the University of Otago in New Zealand. Her current research addresses developments in genetics, including prenatal testing, gene editing, and newborn sequencing.
DNA gathered from animal poop helps protect wildlife

Alida de Flamingh and her team are collecting elephant dung. It holds a trove of information about animal health, diet and genetic diversity.

Courtesy Alida de Flamingh

On the savannah near the Botswana-Zimbabwe border, elephants grazed contentedly. Nearby, postdoctoral researcher Alida de Flamingh watched and waited. As the herd moved away, she went into action, collecting samples of elephant dung that she and other wildlife conservationists would study in the months to come. She pulled on gloves, took a swab, and ran it all over the still-warm, round blob of elephant poop.

Sequencing DNA from fecal matter is a safe, non-invasive way to track and ultimately help protect over 42,000 species currently threatened by extinction. Scientists are using this DNA to gain insights into wildlife health, genetic diversity and even the broader environment. Applied to elephants, chimpanzees, toucans and other species, it helps scientists determine the genetic diversity of groups and linkages with other groups. Such analysis can show changes in rates of inbreeding. Populations with greater genetic diversity adapt better to changes and environmental stressors than those with less diversity, thus reducing their risks of extinction, explains de Flamingh, a postdoctoral researcher at the University of Illinois Urbana-Champaign.

Analyzing fecal DNA also reveals information about an animal’s diet and health, and even nearby flora that is eaten. That information gives scientists broader insights into the ecosystem, and the findings are informing conservation initiatives. Examples include restoring or maintaining genetic connections among groups, ensuring access to certain foraging areas or increasing diversity in captive breeding programs.

Keep Reading Keep Reading
Gail Dutton
Gail Dutton has covered the biopharmaceutical industry as a journalist for the past three decades. She focuses on the intersection of business and science, and has written extensively for GEN – Genetic Engineering & Biotechnology News, Life Science Leader, The Scientist and BioSpace. Her articles also have appeared in Popular Science, Forbes, Entrepreneur and other publications.
DNA- and RNA-based electronic implants may revolutionize healthcare

The test tubes contain tiny DNA/enzyme-based circuits, which comprise TRUMPET, a new type of electronic device, smaller than a cell.

Courtesy Kate Adamala

Implantable electronic devices can significantly improve patients’ quality of life. A pacemaker can encourage the heart to beat more regularly. A neural implant, usually placed at the back of the skull, can help brain function and encourage higher neural activity. Current research on neural implants finds them helpful to patients with Parkinson’s disease, vision loss, hearing loss, and other nerve damage problems. Several of these implants, such as Elon Musk’s Neuralink, have already been approved by the FDA for human use.

Yet, pacemakers, neural implants, and other such electronic devices are not without problems. They require constant electricity, limited through batteries that need replacements. They also cause scarring. “The problem with doing this with electronics is that scar tissue forms,” explains Kate Adamala, an assistant professor of cell biology at the University of Minnesota Twin Cities. “Anytime you have something hard interacting with something soft [like muscle, skin, or tissue], the soft thing will scar. That's why there are no long-term neural implants right now.” To overcome these challenges, scientists are turning to biocomputing processes that use organic materials like DNA and RNA. Other promised benefits include “diagnostics and possibly therapeutic action, operating as nanorobots in living organisms,” writes Evgeny Katz, a professor of bioelectronics at Clarkson University, in his book DNA- And RNA-Based Computing Systems.

Keep Reading Keep Reading
Kenna Hughes-Castleberry
Kenna Hughes-Castleberry is a writer, podcaster, and science communicator. She currently works as the Science Communicator at JILA and is the Editor-in-Chief of their journal Light & Matter. She is also a freelance science journalist and writes for Inside Quantum Technology as a freelance staff editor. Her beats include deep technology, quantum technology, metaverse technology, and diversity within these industries. Kenna’s work has been featured in various publications including Scientific American, Discover Magazine, Ars Technica, Physics.org, Inside Quantum Technology, The Quantum Insider, The Deep Tech Insider, the Metaverse Insider, The Debrief, and Octonation. She currently sits on the board of SWARM (Science Writers Association of the Rocky Mountains) as well as teaches science writing to graduate students at JILA. You can find her on Twitter and Instagram: @kennaculture