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.]
The Nation’s Science and Health Agencies Face a Credibility Crisis: Can Their Reputations Be Restored?
Morale at federal science agencies -- and public trust in their guidance -- is at a concerning low right now.
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.
It didn't have to be this way. More than 200,000 Americans dead, seven million infected, with numbers continuing to climb, an economy in shambles with millions out of work, hundreds of thousands of small businesses crushed with most of the country still under lockdown. And all with no end in sight. This catastrophic result is due in large part to the willful disregard of scientific evidence and of muzzling policy experts by the Trump White House, which has spent its entire time in office attacking science.
One of the few weapons we had to combat the spread of Covid-19—wearing face masks—has been politicized by the President, who transformed this simple public health precaution into a first amendment issue to rally his base. Dedicated public health officials like Dr. Anthony Fauci, the highly respected director of the National Institute of Allergies and Infectious Diseases, have received death threats, which have prompted many of them around the country to resign.
Over the summer, the Trump White House pressured the Centers for Disease Control, which is normally in charge of fighting epidemics, to downplay COVID risks among young people and encourage schools to reopen. And in late September, the CDC was forced to pull federal teams who were going door-to-door doing testing surveys in Minnesota because of multiple incidents of threats and abuse. This list goes on and on.
Still, while the Trump administration's COVID failures are the most visible—and deadly—the nation's entire federal science infrastructure has been undermined in ways large and small.
The White House has steadily slashed monies for science—the 2021 budget cuts funding by 10–30% or more for crucial agencies like National Oceanic and Atmospheric Administration (NOAA) and the Environmental Protection Agency (EPA)—and has gutted health and science agencies across the board, including key agencies of the Department of Energy and the Interior, especially in divisions that deal with issues they oppose ideologically like climate change.
Even farmers can't get reliable information about how climate change affects planting seasons because the White House moved the entire staff at the U.S. Department of Agriculture agency who does this research, relocating them from Maryland to Kansas City, Missouri. Many of these scientists couldn't uproot their families and sell their homes, so the division has had to pretty much start over from scratch with a skeleton crew.
More than 1,600 federal scientists left government in the first two years of the Trump Administration, according to data compiled by the Washington Post, and one-fifth of top positions in science are vacant, depriving agencies of the expertise they need to fulfill their vital functions. Industry executives and lobbyists have been installed as gatekeepers—HHS Secretary Alex Azar was previously president of Eli Lilly, and three climate change deniers were appointed to key posts at the National Oceanic and Atmospheric Administration, to cite just a couple of examples. Trump-appointed officials have sidelined, bullied, or even vilified those who dare to speak out, which chills the rigorous debate that is the essential to sound, independent science.
"The CDC needs to be able to speak regularly to the American people to explain what it knows and how it knows it."
Linda Birnbaum knows firsthand what it's like to become a target. The microbiologist recently retired after more than a decade as the director of the National Institute of Environmental Health Sciences, which is the world's largest environmental health organization and the greatest funder of environmental health and toxicology research, a position that often put her agency at odds with the chemical and fossil fuel industry. There was an attempt to get her fired, she says, "because I had the nerve to write that science should be used in making policy. The chemical industry really went after me, and my last two years were not so much fun under this administration. I'd like to believe it was because I was making a difference—if I wasn't, they wouldn't care."
Little wonder that morale at federal agencies is low. "We're very frustrated," says Dr. William Schaffner, a veteran infectious disease specialist and a professor of medicine at the Vanderbilt University School of Medicine in Nashville. "My colleagues within these agencies, the CDC rank and file, are keeping their heads down doing the best they can, and they hope to weather this storm."
The cruel irony is that the United States was once a beacon of scientific innovation. In the heady post World War II years, while Europe lay in ruins, the successful development of penicillin and the atomic bomb—which Americans believed helped vanquish the Axis powers—unleashed a gusher of public money into research, launching an unprecedented era of achievement in American science. Scientists conquered polio, deciphered the genetic code, harnessed the power of the atom, invented lasers, transistors, microchips and computers, sent missions beyond Mars, and landed men on the moon. A once-inconsequential hygiene laboratory was transformed into the colossus the National Institutes of Health has become, which remains today the world's flagship medical research center, unrivaled in size and scope.
At the same time, a tiny public health agency headquartered in Atlanta, which had been in charge of eradicating the malaria outbreaks that plagued impoverished rural areas in the Deep South until the late 1940s, evolved into the Centers for Disease Control and Prevention. The CDC became the world's leader in fighting disease outbreaks, and the agency's crack team of epidemiologists—members of the vaunted Epidemic Intelligence Service—were routinely dispatched to battle global outbreaks of contagions such as Ebola and malaria and help lead the vaccination campaigns to eradicate killers like polio and small pox that have saved millions of lives.
What will it take to rebuild our federal science infrastructure and restore not only the public's confidence but the respect of the world's scientific community? There are some hopeful signs that there is pushback against the current national leadership, and non-profit watchdog groups like the Union of Concerned Scientists have mapped out comprehensive game plans to restore public trust and the integrity of science.
These include methods of protecting science from political manipulation; restoring the oversight role of independent federal advisory committees, whose numbers were decimated by recent executive orders; strengthening scientific agencies that have been starved by budget cuts and staff attrition; and supporting whistleblower protections and allowing scientists to do their jobs without political meddling to restore integrity to the process. And this isn't just a problem at the CDC. A survey of 1,600 EPA scientists revealed that more than half had been victims of political interference and were pressured to skew their findings, according to research released in April by the Union of Concerned Scientists.
"Federal agencies are staffed by dedicated professionals," says Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists and a former fisheries biologist for NOAA. "Their job is not to serve the president but the public interest. Inspector generals are continuing to do what they're supposed to, but their findings are not being adhered to. But they need to hold agencies accountable. If an agency has not met its mission or engaged in misconduct, there needs to be real consequences."
On other fronts, last month nine vaccine makers, including Sanofi, Pfizer, and AstraZeneca, took the unprecedented stop of announcing that their COVID-19 vaccines would be thoroughly vetted before they were released. In their implicit refusal to bow to political pressure from the White House to have a vaccine available before the election, their goal was to restore public confidence in vaccine safety, and ensure that enough Americans would consent to have the shot when it was eventually approved so that we'd reach the long-sought holy grail of herd immunity.
"That's why it's really important that all of the decisions need to be made with complete transparency and not taking shortcuts," says Dr. Tom Frieden, president and CEO of Resolve to Save Lives and former director of the CDC during the H1N1, Ebola, and Zika emergencies. "A vaccine is our most important tool, and we can't break that tool by meddling in the science approval process."
In late September, Senate Democrats introduced a new bill to halt political meddling in public health initiatives by the White House. Called Science and Transparency Over Politics Act (STOP), the legislation would create an independent task force to investigate political interference in the federal response to the coronavirus pandemic. "The Trump administration is still pushing the president's political priorities rather than following the science to defeat this virus," Senate Minority Leader Chuck Schumer said in a press release.
To effectively bring the pandemic under control and restore public confidence, the CDC must assume the leadership role in fighting COVID-19. During previous outbreaks, the top federal infectious disease specialists like Drs. Fauci and Frieden would have daily press briefings, and these need to resume. "The CDC needs to be able to speak regularly to the American people to explain what it knows and how it knows it," says Frieden, who cautions that a vaccine won't be a magic bullet. "There is no one thing that is going to make this virus go away. We need to continue to limit indoor exposures, wear masks, and do strategic testing, isolation, and quarantine. We need a comprehensive approach, and not just a vaccine."
We must also appoint competent and trustworthy leaders, says Rosenberg of the Union of Concerned Scientists. Top posts in too many science agencies are now filled by former industry executives and lobbyists with a built-in bias, as well as people lacking relevant scientific experience, many of whom were never properly vetted because of the current administration's penchant for bypassing Congress and appointing "acting" officials. "We've got great career people who have hung in, but in so much of the federal government, they just put in 'acting' people," says Linda Birnbaum. "They need to bring in better, qualified senior leadership."
Open positions need to be filled, too. Federal science agencies have been seriously crippled by staffing attrition, and the Trump Administration instituted a hiring freeze when it first came in. Staffing levels remain at least ten percent down from previous levels, says Birnbaum and in many agencies, like the EPA, "everything has come to a screeching halt, making it difficult to get anything done."
But in the meantime, the critical first step may be at the ballot box in November. Even Scientific American, the esteemed consumer science publication, for the first time in its 175-year history felt "compelled" to endorse a presidential candidate, Joe Biden, because of the enormity of the damage they say Donald Trump has inflicted on scientists, their legal protections, and on the federal science agencies.
"If the current administration continues, the national political leadership will be emboldened and will be even more assertive of their executive prerogatives and less concerned about traditional niceties, leading to further erosion of the activities of many federal agencies," says Vanderbilt's William Schaffner. "But the reality is, if the team is losing, you change the coach. Then agencies really have to buckle down because it will take some time to restore their hard-earned reputations."
[Editor's Note: To read other articles in this special magazine issue, visit the beautifully designed e-reader version.]
Announcing "The Future of Science in America: The Election Issue"
This special magazine explores what's at stake for science & policy over the next four years.
As reviewed in The Washington Post, "Tomorrow's challenges in science and politics: Magazine offers in-depth takes on these U.S. issues":
"Is it time for a new way to help make adults more science-literate? What should the next president know about science? Could science help strengthen American democracy? "The Future of Science in America: The Election Issue" has answers. The free, online magazine is packed with interesting takes on how science can serve the common good. And just in time. This year has challenged leaders, researchers and the public with thorny scientific questions, from the coronavirus pandemic to widespread misinformation on scientific issues. The magazine is a collaboration of the Aspen Institute, a think tank that brings together a variety of public figures and private individuals to tackle thorny social issues, the digital science magazine Leapsmag and GOOD, a social impact company. It's packed with 15 in-depth articles about science with a view toward our campaign year."
The Future of Science in America: The Election Issue offers wide-ranging perspectives on challenges and opportunities for science as we elect our next national and local leaders. The fast-striking COVID-19 pandemic and the more slowly moving pandemic of climate change have brought into sharp focus how reliant we will be on science and public policy to work together to rescue us from crisis. Doing so will require cooperation between both political parties, as well as significant public trust in science as a beacon to light the path forward.
In spite of its unfortunate emergence as a flash point between two warring parties, we believe that science is the driving force for universal progress. No endeavor is more noble than the quest to rigorously understand our world and apply that knowledge to further human flourishing. This magazine aspires to promote roadmaps for science as a tool for health, a vehicle for progress, and a unifier of our nation.
This special issue is a collaboration among LeapsMag, the Aspen Institute Science & Society Program, and GOOD, with support from the Gordon and Betty Moore Foundation and the Rita Allen Foundation.
It is available as a free, beautifully designed digital magazine for both desktop and mobile.
TABLE OF CONTENTS:
- SCIENTISTS:
Award-Winning Scientists Offer Advice to the Next President of the United States - PUBLIC OPINION:
National Survey Reveals Americans' Most Important Scientific Priorities - GOVERNMENT:
The Nation's Science and Health Agencies Face a Credibility Crisis: Can Their Reputations Be Restored? - TELEVISION:
To Make Science Engaging, We Need a Sesame Street for Adults - IMMIGRATION:
Immigrant Scientists—and America's Edge—Face a Moment of Truth This Election - RACIAL JUSTICE:
Democratize the White Coat by Honoring Black, Indigenous, and People of Color in Science - EDUCATION:
I'm a Black, Genderqueer Medical Student: Here's My Hard-Won Wisdom for Students and Educational Institutions - TECHNOLOGY:
"Deep Fake" Video Technology Is Advancing Faster Than Our Policies Can Keep Up - VOTERS:
Mind the (Vote) Gap: Can We Get More STEM Students to the Polls? - EXPERTS:
Who Qualifies as an "Expert" and How Can We Decide Who Is Trustworthy? - SOCIAL MEDIA:
Why Your Brain Falls for Misinformation—And How to Avoid It - YOUTH:
Youth Climate Activists Expand Their Focus and Collaborate to Get Out the Vote - SUPREME COURT:
Abortions Before Fetal Viability Are Legal: Might Science and a Change on the Supreme Court Undermine That? - NAVAJO NATION:
An Environmental Scientist and an Educator Highlight Navajo Efforts to Balance Tradition with Scientific Priorities - CIVIC SCIENCE:
Want to Strengthen American Democracy? The Science of Collaboration Can Help
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.