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.]
On the morning of April 12, 1955, newsrooms across the United States inked headlines onto newsprint: the Salk Polio vaccine was "safe, effective, and potent." This was long-awaited news. Americans had limped through decades of fear, unaware of what caused polio or how to cure it, faced with the disease's terrifying, visible power to paralyze and kill, particularly children.
The announcement of the polio vaccine was celebrated with noisy jubilation: church bells rang, factory whistles sounded, people wept in the streets. Within weeks, mass inoculation began as the nation put its faith in a vaccine that would end polio.
Today, most of us are blissfully ignorant of child polio deaths, making it easier to believe that we have not personally benefited from the development of vaccines. According to Dr. Steven Pinker, cognitive psychologist and author of the bestselling book Enlightenment Now, we've become blasé to the gifts of science. "The default expectation is not that disease is part of life and science is a godsend, but that health is the default, and any disease is some outrage," he says.
We're now in the early stages of another vaccine rollout, one we hope will end the ravages of the COVID-19 pandemic. And yet, the Pfizer, Moderna, and AstraZeneca vaccines are met with far greater hesitancy and skepticism than the polio vaccine was in the 50s.
In 2021, concerns over the speed and safety of vaccine development and technology plague this heroic global effort, but the roots of vaccine hesitancy run far deeper. Vaccine hesitancy has always existed in the U.S., even in the polio era, motivated in part by fears around "living virus" in a bad batch of vaccines produced by Cutter Laboratories in 1955. But in the last half century, we've witnessed seismic cultural shifts—loss of public trust, a rise in misinformation, heightened racial and socioeconomic inequality, and political polarization have all intensified vaccine-related fears and resistance. Making sense of how we got here may help us understand how to move forward.
The Rise and Fall of Public Trust
When the polio vaccine was released in 1955, "we were nearing an all-time high point in public trust," says Matt Baum, Harvard Kennedy School professor and lead author of several reports measuring public trust and vaccine confidence. Baum explains that the U.S. was experiencing a post-war boom following the Allied triumph in WWII, a popular Roosevelt presidency, and the rapid innovation that elevated the country to an international superpower.
The 1950s witnessed the emergence of nuclear technology, a space program, and unprecedented medical breakthroughs, adds Emily Brunson, Texas State University anthropologist and co-chair of the Working Group on Readying Populations for COVID-19 Vaccine. "Antibiotics were a game changer," she states. While before, people got sick with pneumonia for a month, suddenly they had access to pills that accelerated recovery.
During this period, science seemed to hold all the answers; people embraced the idea that we could "come to know the world with an absolute truth," Brunson explains. Doctors were portrayed as unquestioned gods, so Americans were primed to trust experts who told them the polio vaccine was safe.
"The emotional tone of the news has gone downward since the 1940s, and journalists consider it a professional responsibility to cover the negative."
That blind acceptance eroded in the 1960s and 70s as people came to understand that science can be inherently political. "Getting to an absolute truth works out great for white men, but these things affect people socially in radically different ways," Brunson says. As the culture began questioning the white, patriarchal biases of science, doctors lost their god-like status and experts were pushed off their pedestals. This trend continues with greater intensity today, as President Trump has led a campaign against experts and waged a war on science that began long before the pandemic.
The Shift in How We Consume Information
In the 1950s, the media created an informational consensus. The fundamental ideas the public consumed about the state of the world were unified. "People argued about the best solutions, but didn't fundamentally disagree on the factual baseline," says Baum. Indeed, the messaging around the polio vaccine was centralized and consistent, led by President Roosevelt's successful March of Dimes crusade. People of lower socioeconomic status with limited access to this information were less likely to have confidence in the vaccine, but most people consumed media that assured them of the vaccine's safety and mobilized them to receive it.
Today, the information we consume is no longer centralized—in fact, just the opposite. "When you take that away, it's hard for people to know what to trust and what not to trust," Baum explains. We've witnessed an increase in polarization and the technology that makes it easier to give people what they want to hear, reinforcing the human tendencies to vilify the other side and reinforce our preexisting ideas. When information is engineered to further an agenda, each choice and risk calculation made while navigating the COVID-19 pandemic is deeply politicized.
This polarization maps onto a rise in socioeconomic inequality and economic uncertainty. These factors, associated with a sense of lost control, prime people to embrace misinformation, explains Baum, especially when the situation is difficult to comprehend. "The beauty of conspiratorial thinking is that it provides answers to all these questions," he says. Today's insidious fragmentation of news media accelerates the circulation of mis- and disinformation, reaching more people faster, regardless of veracity or motivation. In the case of vaccines, skepticism around their origin, safety, and motivation is intensified.
Alongside the rise in polarization, Pinker says "the emotional tone of the news has gone downward since the 1940s, and journalists consider it a professional responsibility to cover the negative." Relentless focus on everything that goes wrong further erodes public trust and paints a picture of the world getting worse. "Life saved is not a news story," says Pinker, but perhaps it should be, he continues. "If people were more aware of how much better life was generally, they might be more receptive to improvements that will continue to make life better. These improvements don't happen by themselves."
The Future Depends on Vaccine Confidence
So far, the U.S. has been unable to mitigate the catastrophic effects of the pandemic through social distancing, testing, and contact tracing. President Trump has downplayed the effects and threat of the virus, censored experts and scientists, given up on containing the spread, and mobilized his base to protest masks. The Trump Administration failed to devise a national plan, so our national plan has defaulted to hoping for the "miracle" of a vaccine. And they are "something of a miracle," Pinker says, describing vaccines as "the most benevolent invention in the history of our species." In record-breaking time, three vaccines have arrived. But their impact will be weakened unless we achieve mass vaccination. As Brunson notes, "The technology isn't the fix; it's people taking the technology."
Significant challenges remain, including facilitating widespread access and supporting on-the-ground efforts to allay concerns and build trust with specific populations with historic reasons for distrust, says Brunson. Baum predicts continuing delays as well as deaths from other causes that will be linked to the vaccine.
Still, there's every reason for hope. The new administration "has its eyes wide open to these challenges. These are the kind of problems that are amenable to policy solutions if we have the will," Baum says. He forecasts widespread vaccination by late summer and a bounce back from the economic damage, a "Good News Story" that will bolster vaccine acceptance in the future. And Pinker reminds us that science, medicine, and public health have greatly extended our lives in the last few decades, a trend that can only continue if we're willing to roll up our sleeves.
Scientists Are Working to Develop a Clever Nasal Spray That Tricks the Coronavirus Out of the Body
Imagine this scenario: you get an annoying cough and a bit of a fever. When you wake up the next morning you lose your sense of taste and smell. That sounds familiar, so you head to a doctor's office for a Covid test, which comes back positive.
Your next step? An anti-Covid nasal spray of course, a "trickster drug" that will clear the once-dangerous and deadly virus out of the body. The drug works by tricking the coronavirus with decoy receptors that appear to be just like those on the surface of our own cells. The virus latches onto the drug's molecules "thinking" it is breaking into human cells, but instead it flushes out of your system before it can cause any serious damage.
This may sounds like science fiction, but several research groups are already working on such trickster coronavirus drugs, with some candidates close to clinical trials and possibly even becoming available late this year. The teams began working on them when the pandemic arrived, and continued in lockdown.
This may sounds like science fiction, but several research groups are already working on such trickster coronavirus drugs, with some candidates close to clinical trials and possibly even becoming available late this year. The teams began working on them when the pandemic arrived, and continued in lockdown.
When the pandemic first hit and the state of California issued a lockdown order on March 16, postdoctoral researchers Anum and Jeff Glasgow found themselves stuck at home with nothing to do. The two scientists who study bioengineering felt that they were well equipped to research molecular ways of disabling coronavirus's cell-penetrating spike protein, but they could no longer come to their labs at the University of California San Francisco.
"We were upset that no one put us in the game," says Anum Glasgow. "We have a lot of experience between us doing these types of projects so we wanted to contribute." But they still had computers so they began modeling the potential virus-disabling proteins in silico using Robetta, special software for designing and modeling protein structures, developed and maintained by University of Washington biochemist David Baker and his lab.
"We saw some imperfections in that lock and key and we created something better. We made a 10 times tighter adhesive."
The SARS-CoV-2 virus that causes Covid-19 uses its surface spike protein to bind on to a specific receptor on human cells called ACE2. Unfortunately for humans, the spike protein's molecular shape fits the ACE2 receptor like a well-cut key, making it very successful at breaking into our cells. But if one could design a molecular ACE2-mimic to "trick" the virus into latching onto it instead, the virus would no longer be able to enter cells. Scientists call such mimics receptor traps or inhibitors, or blockers. "It would block the adhesive part of the virus that binds to human cells," explains Jim Wells, professor of pharmaceutical chemistry at UCSF, whose lab took part in designing the ACE2-receptor mimic, working with the Glasgows and other colleagues.
The idea of disabling infectious or inflammatory agents by tricking them into binding to the targets' molecular look-alikes is something scientists have tried with other diseases. The anti-inflammatory drugs commonly used to treat autoimmune conditions, including rheumatoid arthritis, Crohn's disease and ulcerative colitis, rely on conceptually similar molecular mechanisms. Called TNF blockers, these drugs block the activity of the inflammatory cytokines, molecules that promote inflammation. "One of the biggest selling drugs in the world is a receptor trap," says Jeff Glasgow. "It acts as a receptor decoy. There's a TNF receptor that traps the cytokine."
In the recent past, scientists also pondered a similar look-alike approach to treating urinary tract infections, which are often caused by a pathogenic strain of Escherichia coli. An E. coli bacterium resembles a squid with protruding filaments equipped with proteins that can change their shape to form hooks, used to hang onto specific sugar molecules called ligands, which are present on the surface of the epithelial cells lining the urinary tract.
A recent study found that a sugar-like compound that's structurally similar to that ligand can play a similar trick on the E. Coli. When administered in in sufficient amounts, the compound hooks the bacteria on, which is then excreted out of the body with urine. The "trickster" method had been also tried against the HIV virus, but it wasn't very effective because HIV has a high mutation rate and multiple ways of entering human cells.
But the coronavirus spike protein's shape is more stable. And while it has a strong affinity for the ACE2 receptors, its natural binding to these receptors isn't perfect, which allowed the UCSF researchers to design a mimic with a better grip. "We saw some imperfections in that lock and key and we created something better," says Wells. "We made a 10 times tighter adhesive." The team demonstrated that their traps neutralized SARS-CoV-2 in lab experiments and published their study in the Proceedings of the National Academy of Sciences.
Baker, who is the director of the Institute for Protein Design at the University of Washington, was also devising ACE2 look-alikes with his team. Only unlike the UCSF team, they didn't perfect the virus-receptor lock and key combo, but instead designed their mimics from scratch. Using Robetta, they digitally modeled over two million proteins, zeroed-in on over 100,000 potential candidates and identified a handful with a strong promise of blocking SARS-CoV-2, testing them against the virus in human cells. Their design of the miniprotein inhibitors was published in the journal Science.
Biochemist David Baker, pictured in his lab at the University of Washington.
UW
The concept of the ACE2 receptor mimics is somewhat similar to the antibody plasma, but better, the teams explain. Antibodies don't always coat all of the virus's spike proteins and sometimes don't bind perfectly. By contrast, the ACE2 mimics directly compete with the virus's entry mechanism. ACE2 mimics are also easier and cheaper to make, researchers say.
Antibodies, which are long protein chains, must be grown inside mammalian cells, which is a slow and costly process. As drugs, antibody cocktails must be kept refrigerated. On the contrary, proteins that mimic ACE2 receptors are smaller and can be produced by bacteria easily and inexpensively. Designed to specs, these proteins don't need refrigeration and are easy to store. "We designed them to be very stable," says Baker. "Our computation design tries to come up with the stable proteins that have the desired functions."
That stability may allow the team to create an inhaler drug rather than an intravenous one, which would be another advantage over the antibody plasma, given via an IV. The team envisions people spraying the miniprotein solution into their nose, creating a protecting coating that would disable the inhaled virus. "The infection starts from your respiratory system, from your nose," explains Longxing Cao, the study's co-author—so a nasal spray would be a natural way to administer it. "So that you can have it like a layer, similar to a mask."
As the virus evolves, new variants are arising. But the teams think that their ACE2 protein mimics should work on the new variants too for several reasons. "Since the new SARS-CoV-2 variants still use ACE2 for their cell entry, they will likely still be susceptible to ACE2-based traps," Glasgow says.
Cao explains that their approach should work too because most of the mutations happen outside the ACE2 binding region. Plus, they are building multiple binders that can bind to an array of the coronavirus variants. "Our binder can still bind with most of the variants and we are trying to make one protein that could inhibit all the future escape variants," he says.
Baker and Cao hope that their miniproteins may be available to patients later this year. But besides getting the medicine out to patients, this approach will allow researchers to test the computer-modeled mimics end-to-end with an unprecedented speed. That would give humans a leg up in future pandemics or zoonotic disease outbreaks, which remain an increasingly pressing threat due to human activity and climate change.
"That's what we are focused on right now—understanding what we have learned from this pandemic to improve our design methods," says Baker. "So that we should be able to obtain binders like these very quickly when a new pandemic threat is identified."
Lina Zeldovich has written about science, medicine and technology for Popular Science, Smithsonian, National Geographic, Scientific American, Reader’s Digest, the New York Times and other major national and international publications. A Columbia J-School alumna, she has won several awards for her stories, including the ASJA Crisis Coverage Award for Covid reporting, and has been a contributing editor at Nautilus Magazine. In 2021, Zeldovich released her first book, The Other Dark Matter, published by the University of Chicago Press, about the science and business of turning waste into wealth and health. You can find her on http://linazeldovich.com/ and @linazeldovich.