Abortions Before Fetal Viability Are Legal: Might Science and the Change on the Supreme Court Undermine That?
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.]
The Pandemic Is Ushering in a More Modern—and Ethical—Way of Studying New Drugs and Diseases
Before the onset of the coronavirus pandemic, Dutch doctoral researcher Joep Beumer had used miniature lab-grown organs to study the human intestine as part of his PhD thesis. When lockdown hit, however, he was forced to delay his plans for graduation. Overwhelmed by a sense of boredom after the closure of his lab at the Hubrecht Institute, in the Netherlands, he began reading literature related to COVID-19.
"By February [2020], there were already reports on coronavirus symptoms in the intestinal tract," Beumer says, adding that this piqued his interest. He wondered if he could use his miniature models – called organoids -- to study how the coronavirus infects the intestines.
But he wasn't the only one to follow this train of thought. In the year since the pandemic began, many researchers have been using organoids to study how the coronavirus infects human cells, and find potential treatments. Beumer's pivot represents a remarkable and fast-emerging paradigm shift in how drugs and diseases will be studied in the coming decades. With future pandemics likely to be more frequent and deadlier, such a shift is necessary to reduce the average clinical development time of 5.9 years for antiviral agents.
Part of that shift means developing models that replicate human biology in the lab. Animal models, which are the current standard in biomedical research, fail to do so—96% of drugs that pass animal testing, for example, fail to make it to market. Injecting potentially toxic drugs into living creatures, before eventually slaughtering them, also raises ethical concerns for some. Organoids, on the other hand, respond to infectious diseases, or potential treatments, in a way that is relevant to humans, in addition to being slaughter-free.
Human intestinal organoids infected with SARS-CoV-2 (white).
Credit: Joep Beumer/Clevers group/Hubrecht Institute
Urgency Sparked Momentum
Though brain organoids were previously used to study the Zika virus during the 2015-16 epidemic, it wasn't until COVID-19 that the field really started to change. "The organoid field has advanced a lot in the last year. The speed at which it happened is crazy," says Shuibing Chen, an associate professor at Weill Cornell Medicine in New York. She adds that many federal and private funding agencies have now seen the benefits of organoids, and are starting to appreciate their potential in the biomedical field.
Last summer, the Organo-Strat (OS) network—a German network that uses human organoid models to study COVID-19's effects—received 3.2 million euros in funding from the German government. "When the pandemic started, we became aware that we didn't have the right models to immediately investigate the effects of the virus," says Andreas Hocke, professor of infectious diseases at the Charité Universitätsmedizin in Berlin, Germany, and coordinator of the OS network. Hocke explained that while the World Health Organization's animal models showed an "overlap of symptoms'' with humans, there was "no clear reflection" of the same disease.
"The network functions as a way of connecting organoid experts with infectious disease experts across Germany," Hocke continues. "Having organoid models on demand means we can understand how a virus infects human cells from the first moment it's isolated." Overall, OS aims to create infrastructure that could be applied to future pandemics. There are 28 sub-projects involved in the network, covering a wide assortment of individual organoids.
Cost, however, remains an obstacle to scaling up, says Chen. She says there is also a limit to what we can learn from organoids, given that they only represent a single organ. "We can add drugs to organoids to see how the cells respond, but these tests don't tell us anything about drug metabolism, for example," she explains.
A Related "Leaps" in Progress
One way to solve this issue is to use an organ-on-a-chip system. These are miniature chips containing a variety of human cells, as well as small channels along which functions like blood or air flow can be recreated. This allows scientists to perform more complex experiments, like studying drug metabolism, while producing results that are relevant to humans.
An organ-on-a-chip system.
Credit: Fraunhofer IGB
Such systems are also able to elicit an immune response. The FDA has even entered into an agreement with Wyss Institute spinoff Emulate to use their lung-on-a-chip system to test COVID-19 vaccines. Representing multiple organs in one system is also possible. Berlin-based TissUse are aiming to make a so-called 'human on a chip' system commercially available. But TissUse senior scientist Ilka Maschmeyer warns that there is a limit to how far the technology can go. "The system will not think or feel, so it wouldn't be possible to test for illnesses affecting these abilities," she says.
Some challenges also remain in the usability of organs-on-a-chip. "Specialized training is required to use them as they are so complex," says Peter Loskill, assistant professor and head of the organ-on-a-chip group at the University of Tübingen, Germany. Hocke agrees with this. "Cell culture scientists would easily understand how to use organoids in a lab, but when using a chip, you need additional biotechnology knowledge," he says.
One major advantage of both technologies is the possibility of personalized medicine: Cells can be taken from a patient and put onto a chip, for example, to test their individual response to a treatment. Loskill also says there are other uses outside of the biomedical field, such as cosmetic and chemical testing.
"Although these technologies offer a lot of possibilities, they need time to develop," Loskill continues. He stresses, however, that it's not just the technology that needs to change. "There's a lot of conservative thinking in biomedical research that says this is how we've always done things. To really study human biology means approaching research questions in a completely new way."
Even so, he thinks that the pandemic marked a shift in people's thinking—no one cared how the results were found, as long as it was done quickly. But Loskill adds that it's important to balance promise, potential, and expectations when it comes to these new models. "Maybe in 15 years' time we will have a limited number of animal models in comparison to now, but the timescale depends on many factors," he says.
Beumer, now a post-doc, was eventually allowed to return to the lab to develop his coronavirus model, and found working on it to be an eye-opening experience. He saw first-hand how his research could have an impact on something that was affecting the entire human race, as well as the pressure that comes with studying potential treatments. Though he doesn't see a future for himself in infectious diseases, he hopes to stick with organoids. "I've now gotten really excited about the prospect of using organoids for drug discovery," he says.
The coronavirus pandemic has slowed society down in many respects, but it has flung biomedical research into the future—from mRNA vaccines to healthcare models based on human biology. It may be difficult to fully eradicate animal models, but over the coming years, organoids and organs-on-a-chip may become the standard for the sake of efficacy -- and ethics.
Jack McGovan is a freelance science writer based in Berlin. His main interests center around sustainability, food, and the multitude of ways in which the human world intersects with animal life. Find him on Twitter @jack_mcgovan."
New Podcast: Why Dr. Ashish Jha Expects a Good Summer
Making Sense of Science features interviews with leading medical and scientific experts about the latest developments and the big ethical and societal questions they raise. This monthly podcast is hosted by journalist Kira Peikoff, founding editor of the award-winning science outlet Leaps.org.
Hear the 30-second trailer:
Listen to the whole episode: "Why Dr. Ashish Jha Expects a Good Summer"
Dr. Ashish Jha, dean of public health at Brown University, discusses the latest developments around the Covid-19 vaccines, including supply and demand, herd immunity, kids, vaccine passports, and why he expects the summer to look very good.
Kira Peikoff was the editor-in-chief of Leaps.org from 2017 to 2021. As a journalist, her work has appeared in The New York Times, Newsweek, Nautilus, Popular Mechanics, The New York Academy of Sciences, and other outlets. She is also the author of four suspense novels that explore controversial issues arising from scientific innovation: Living Proof, No Time to Die, Die Again Tomorrow, and Mother Knows Best. Peikoff holds a B.A. in Journalism from New York University and an M.S. in Bioethics from Columbia University. She lives in New Jersey with her husband and two young sons. Follow her on Twitter @KiraPeikoff.