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.
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.]
Democratize the White Coat by Honoring Black, Indigenous, and People of Color in Science
Celebrating BIPOC's achievements in science are a strong first step to make science a guiding force for all.
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.
Journalists, educators, and curators have responded to Black Lives Matter by highlighting the history and achievements of Black Americans in a variety of fields, including science. The movement has also sparked important demands to address longstanding scientific inequities such as lack of access to quality healthcare and the disproportionate impact of climate change and environmental pollution on neighborhoods of Black, Indigenous, and people of color (BIPOC). Making such improvements requires bringing BIPOC into science and into positions of leadership in laboratories, graduate schools, medical practices, and clinical trials. The moment is right to challenge scientific gatekeepers to respond to Black Lives Matter by widening the pathways that determine who becomes a scientist, a researcher, or a clinician.
The scientific workforce has long lacked diversity, which in turn discourages Black people from pursuing such careers. Causes include a dearth of mentors and role models, preconceived notions that science is exclusive to white males, and subpar STEM education. Across race, gender, class, ability, and all other dimensions that inform how an individual navigates the world, from the familial to the global level, seeing role models who resemble you impacts what you strive for and believe possible. As Marian Wright Edelman stated, "You can't be what you can't see"—a truth with ever-increasing resonance since the U.S. is projected to be minority-white by 2045.
Black Americans have paved the way for the nation to lead in science and technology, despite marginalization and exclusion from textbooks. Physicist Dr. Shirley Ann Jackson invented the technology behind Caller I.D. and Call Waiting. Otis Boykin's patents made televisions and radios what they are today. Thanks to the 2017 movie Hidden Figures, millions of Americans know about Katherine Johnson, the NASA mathematician whose calculations were essential to the successful trajectory of the Apollo 11 mission.
However, highlighting past role models who were Black achievers is not enough and paints too static a picture—especially when examples of transformative work by contemporary BIPOC scientists serving BIPOC communities abound. Cognitive neuroscientist Dr. Jonathan Jackson founded the Community Access, Recruitment, & Engagement (CARE) Research Center with the goal to break down barriers so that people of color participate in clinical trials. Geneticist Dr. Nanibaa' Garrison's research creates ethical frameworks to overcome genomic injustices so Indigenous populations can benefit from genetic research. Computer scientists Joy Buolamwini and Dr. Timnit Gebru's research drew attention to reinforced racial bias in artificial intelligence, leading Microsoft, Amazon, and IBM this summer to halt use of their facial recognition software.
"Integration does not mean equality if the space being integrated isn't exuberantly down for the cause."
In order to honor concretely the ubiquitous public statements and commitments to justice and equity that flooded everyone's inboxes in early June, we must include traditionally underrepresented voices in all phases of science and its applications. For guidance, we would benefit from listening to activists leading, for example, climate marches and protests over toxic water. Indeed, science is at the core of the issues for which young BIPOC are mobilizing. We need to sit down with these individuals to gain their input on how the narratives, practices, and opportunities in science should change. As Zeena Abdulkarim, a youth climate change organizer working with Zero Hour, explains: "Minority communities are exposed to what the privileged and people in power are not; therefore these communities know the right steps to take in the change we need for the kickstart of true social and environmental justice."
Two other Black youth, for example, used the platform of the laboratory while in high school to mobilize for change. Elle Lanair Lett, now specializing in epidemiology as an M.D.-Ph.D. student in Philadelphia, was prompted by family prevalence of diabetes to research the genetics of pancreatic cells. Dr. Otana Jakpor, now an ophthalmology resident in Michigan, was motivated by the pollution in her hometown of Riverside, California, to research the pulmonary effects of indoor air purifiers, with findings that influenced California ozone regulations. Both became finalists in a national science fair, propelling them on paths toward science careers. These young scientists demonstrate how people's communities and lived experiences can shape trajectories of science research, which, in turn, determines which visions for society are materialized and popularized.
We can also gain insight from another childhood science fair veteran, self-proclaimed "Black STEMinist" Augusta Uwamanzu-Nna, who graduated from college in May and works as a bioengineer. In her view, "we need to shift the burden away from Black people and onto individuals who have contributed to our current reality—fundamentally requiring understanding, open-mindedness, a lack of bias, cultural competency, anti-racism, anti-homophobia, and many, many other things."
Celebrating BIPOC's accomplishments in science and cultivating new leadership today are strong first steps to make science a guiding force for all. Ms. Uwamanzu-Nna keenly reminds us, "Integration does not mean equality if the space being integrated isn't exuberantly down for the cause." Indeed, educational institutions, scientific companies, and medical centers must acknowledge and embrace their role in democratizing science in order for society to realize racial and scientific justice.
[Editor's Note: To read other articles in this special magazine issue, visit the beautifully designed e-reader version.]
Artificial avatars for hire and sophisticated video manipulation carry profound implications for society.
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.
Alethea.ai sports a grid of faces smiling, blinking and looking about. Some are beautiful, some are oddly familiar, but all share one thing in common—they are fake.
Alethea creates "synthetic media"— including digital faces customers can license saying anything they choose with any voice they choose. Companies can hire these photorealistic avatars to appear in explainer videos, advertisements, multimedia projects or any other applications they might dream up without running auditions or paying talent agents or actor fees. Licenses begin at a mere $99. Companies may also license digital avatars of real celebrities or hire mashups created from real celebrities including "Don Exotic" (a mashup of Donald Trump and Joe Exotic) or "Baby Obama" (a large-eared toddler that looks remarkably similar to a former U.S. President).
Naturally, in the midst of the COVID pandemic, the appeal is understandable. Rather than flying to a remote location to film a beer commercial, an actor can simply license their avatar to do the work for them. The question is—where and when this tech will cross the line between legitimately licensed and authorized synthetic media to deep fakes—synthetic videos designed to deceive the public for financial and political gain.
Deep fakes are not new. From written quotes that are manipulated and taken out of context to audio quotes that are spliced together to mean something other than originally intended, misrepresentation has been around for centuries. What is new is the technology that allows this sort of seamless and sophisticated deception to be brought to the world of video.
"At one point, video content was considered more reliable, and had a higher threshold of trust," said Alethea CEO and co-founder, Arif Khan. "We think video is harder to fake and we aren't yet as sensitive to detecting those fakes. But the technology is definitely there."
"In the future, each of us will only trust about 15 people and that's it," said Phil Lelyveld, who serves as Immersive Media Program Lead at the Entertainment Technology Center at the University of Southern California. "It's already very difficult to tell true footage from fake. In the future, I expect this will only become more difficult."
How do we know what's true in a world where original videos created with avatars of celebrities and politicians can be manipulated to say virtually anything?
As the U.S. 2020 Presidential Election nears, the potential moral and ethical implications of this technology are startling. A number of cases of truth tampering have recently been widely publicized. On August 5, President Donald Trump's campaign released an ad featuring several photos of Joe Biden that were altered to make it seem like was hiding all alone in his basement. In one photo, at least ten people who had been sitting with Biden in the original shot were cut out. In other photos, Biden's image was removed from a nature preserve and praying in church to make it appear Biden was in that same basement. Recently several videos of Speaker of the House Nancy Pelosi were slowed down by 75 percent to make her sound as if her speech was slurred.
During a campaign event in Florida on September 15 of this year, former Vice President Joe Biden was introduced by Puerto Rican singer-songwriter Luis Fonsi. After he was introduced, Biden paid tribute to the singer-songwriter—he held up his cell phone and played the hit song "Despecito". Shortly afterward, a doctored version of this video appeared on self-described parody site the United Spot replacing the Despicito with N.W.A.'s "F—- Tha Police". By September 16, Donald Trump retweeted the video, twice—first with the line "What is this all about" and second with the line "China is drooling. They can't believe this!" Twitter was quick to mark the video in these tweets as manipulated media.
Twitter had previously addressed several of Donald Trump's tweets—flagging a video shared in June as manipulated media and removing altogether a video shared by Trump in July showing a group promoting the hydroxychloroquine as an effective cure for COVID-19. Many of these manipulated videos are ultimately flagged or taken down, but not before they are seen and shared by millions of online viewers.
These faked videos were exposed rather quickly, as they could be compared with the original, publicly available source material. But what happens when there is no original source material? How do we know what's true in a world where original videos created with avatars of celebrities and politicians can be manipulated to say virtually anything?
"This type of fake media is a profound threat to our democracy," said Reid Blackman, the CEO of VIRTUE--an ethics consultancy for AI leaders. "Democracy depends on well-informed citizens. When citizens can't or won't discern between real and fake news, the implications are huge."
In light of the importance of reliable information in the political system, there's a clear and present need to verify that the images and news we consume is authentic. So how can anyone ever know that the content they are viewing is real?
"This will not be a simple technological solution," said Blackman. "There is no 'truth' button to push to verify authenticity. There's plenty of blame and condemnation to go around. Purveyors of information have a responsibility to vet the reliability of their sources. And consumers also have a responsibility to vet their sources."
Yet the process of verifying sources has never been more challenging. More and more citizens are choosing to live in a "media bubble"—gathering and sharing news only from and with people who share their political leanings and opinions. At one time, United States broadcasters were bound by the Fairness Doctrine—requiring them to present controversial issues important to the public in a way that the FCC deemed honest, equitable and balanced. The repeal of this doctrine in 1987 paved the way for new forms of cable news channels such as Fox News and MSNBC that appealed to viewers with a particular point of view. The Internet has only exacerbated these tendencies. Social media algorithms are designed to keep people clicking within their comfort zones by presenting members with only the thoughts and opinions they want to hear.
"I sometimes laugh when I hear people tell me they can back a particular opinion they hold with research," said Blackman. "Having conducted a fair bit of true scientific research, I am aware that clicking on one article on the Internet hardly qualifies. But a surprising number of people believe that finding any source online that states the fact they choose to believe is the same as proving it true."
Back to the fundamental challenge: How do we as a society root out what's false online? Lelyveld suggests that it will begin by verifying things that are known to be true rather than trying to call out everything that is fake. "The EU called me in to talk about how to deal with fake news coming out of Russia," said Lelyveld. "I told them Hollywood has spent 100 years developing special effects technology to make things that are wholly fictional indistinguishable from the truth. I told them that you'll never chase down every source of fake news. You're better off focusing on what can be proved true."
Arif Khan agrees. "There are probably 100 accounts attributed to Elon Musk on Twitter, but only one has the blue checkmark," said Khan. "That means Twitter has verified that an account of public interest is real. That's what we're trying to do with our platform. Allow celebrities to verify that specific videos were licensed and authorized directly by them."
Alethea will use another key technology called blockchain to mark all authentic authorized videos with celebrity avatars. Blockchain uses a distributed ledger technology to make sure that no undetected changes have been made to the content. Think of the difference between editing a document in a traditional word processing program and editing in a distributed online editing system like Google Docs. In a traditional word processing program, you can edit and copy a document without revealing any changes. In a shared editing system like Google Docs, every person who shares the document can see a record of every edit, addition and copy made of any portion of the document. In a similar way, blockchain helps Alethea ensure that approved videos have not been copied or altered inappropriately.
While AI companies like Alethea are moving to ensure that avatars based on real individuals aren't wrongly identified, the situation becomes a bit murkier when it comes to the question of representing groups, races, creeds, and other forms of identity. Alethea is rightly proud that the completely artificial avatars visually represent a variety of ages, races and sexes. However, companies could conceivably license an avatar to represent a marginalized group without actually hiring a person within that group to decide what the avatar will do or say.
"I don't know if I would call this tokenism, as that is difficult to identify without understanding the hiring company's intent," said Blackman. "Where this becomes deeply troubling is when avatars are used to represent a marginalized group without clearly pointing out the actor is an avatar. It's one thing for an African American woman avatar to say, 'I like ice cream.' It's entirely different thing for an African American woman avatar to say she supports a particular political candidate. In the second case, the avatar is being used as social proof that real people of a certain type back a certain political idea. And there the deception is far more problematic."
"It always comes down to unintended consequences of technology," said Lelyveld. "Technology is neutral—it's only the implementation that has the power to be good or bad. Without a thoughtful approach to the cultural, moral and political implications of technology, it often drifts towards the bad. We need to make a conscious decision as we release new technology to ensure it moves towards the good."
When presented with the idea that his avatars might be used to misrepresent marginalized groups, Khan was thoughtful. "Yes, I can see that is an unintended consequence of our technology. We would like to encourage people to license the avatars of real people, who would have final approval over what their avatars say or do. As to what people do with our completely artificial avatars, we will have to consider that moving forward."
Lelyveld frankly sees the ability for advertisers to create avatars that are our assistants or even our friends as a greater moral concern. "Once our digital assistant or avatar becomes an integral part of our life—even a friend as it were, what's to stop marketers from having those digital friends make suggestions about what drink we buy, which shirt we wear or even which candidate we elect? The possibilities for bad actors to reach us through our digital circle is mind-boggling."
Ultimately, Blackman suggests, we as a society will need to make decisions about what matters to us. "We will need to build policies and write laws—tackling the biggest problems like political deep fakes first. And then we have to figure out how to make the penalties stiff enough to matter. Fining a multibillion-dollar company a few million for a major offense isn't likely to move the needle. The punishment will need to fit the crime."
Until then, media consumers will need to do their own due diligence—to do the difficult work of uncovering the often messy and deeply uncomfortable news that's the truth.
[Editor's Note: To read other articles in this special magazine issue, visit the beautifully designed e-reader version.]