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.]
Real-Time Monitoring of Your Health Is the Future of Medicine
Implantable sensors and other surveillance technologies offer tremendous health benefits -- and ethical challenges.
The same way that it's harder to lose 100 pounds than it is to not gain 100 pounds, it's easier to stop a disease before it happens than to treat an illness once it's developed.
In Morris' dream scenario "everyone will be implanted with a sensor" ("…the same way most people are vaccinated") and the sensor will alert people to go to the doctor if something is awry.
Bio-engineers working on the next generation of diagnostic tools say today's technology, such as colonoscopies or mammograms, are reactionary; that is, they tell a person they are sick often when it's too late to reverse course. Surveillance medicine — such as implanted sensors — will detect disease at its onset, in real time.
What Is Possible?
Ever since the Human Genome Project — which concluded in 2003 after mapping the DNA sequence of all 30,000 human genes — modern medicine has shifted to "personalized medicine." Also called, "precision health," 21st-century doctors can in some cases assess a person's risk for specific diseases from his or her DNA. The information enables women with a BRCA gene mutation, for example, to undergo more frequent screenings for breast cancer or to pro-actively choose to remove their breasts, as a "just in case" measure.
But your DNA is not always enough to determine your risk of illness. Not all genetic mutations are harmful, for example, and people can get sick without a genetic cause, such as with an infection. Hence the need for a more "real-time" way to monitor health.
Aaron Morris, a postdoctoral researcher in the Department of Biomedical Engineering at the University of Michigan, wants doctors to be able to predict illness with pinpoint accuracy well before symptoms show up. Working in the lab of Dr. Lonnie Shea, the team is building "a tiny diagnostic lab" that can live under a person's skin and monitor for illness, 24/7. Currently being tested in mice, the Michigan team's porous biodegradable implant becomes part of the body as "cells move right in," says Morris, allowing engineered tissue to be biopsied and analyzed for diseases. The information collected by the sensors will enable doctors to predict disease flareups, such as for cancer relapses, so that therapies can begin well before a person comes out of remission. The technology will also measure the effectiveness of those therapies in real time.
In Morris' dream scenario "everyone will be implanted with a sensor" ("…the same way most people are vaccinated") and the sensor will alert people to go to the doctor if something is awry.
While it may be four or five decades before Morris' sensor becomes mainstream, "the age of surveillance medicine is here," says Jamie Metzl, a technology and healthcare futurist who penned Hacking Darwin: Genetic Engineering and the Future of Humanity. "It will get more effective and sophisticated and less obtrusive over time," says Metzl.
Already, Google compiles public health data about disease hotspots by amalgamating individual searches for medical symptoms; pill technology can digitally track when and how much medication a patient takes; and, the Apple watch heart app can predict with 85-percent accuracy if an individual using the wrist device has Atrial Fibrulation (AFib) — a condition that causes stroke, blood clots and heart failure, and goes undiagnosed in 700,000 people each year in the U.S.
"We'll never be able to predict everything," says Metzl. "But we will always be able to predict and prevent more and more; that is the future of healthcare and medicine."
Morris believes that within ten years there will be surveillance tools that can predict if an individual has contracted the flu well before symptoms develop.
At City College of New York, Ryan Williams, assistant professor of biomedical engineering, has built an implantable nano-sensor that works with a florescent wand to scope out if cancer cells are growing at the implant site. "Instead of having the ovary or breast removed, the patient could just have this [surveillance] device that can say 'hey we're monitoring for this' in real-time… [to] measure whether the cancer is maybe coming back,' as opposed to having biopsy tests or undergoing treatments or invasive procedures."
Not all surveillance technologies that are being developed need to be implanted. At Case Western, Colin Drummond, PhD, MBA, a data scientist and assistant department chair of the Department of Biomedical Engineering, is building a "surroundable." He describes it as an Alexa-style surveillance system (he's named her Regina) that will "tell" the user, if a need arises for medication, how much to take and when.
Bioethical Red Flags
"Everyone should be extremely excited about our move toward what I call predictive and preventive health care and health," says Metzl. "We should also be worried about it. Because all of these technologies can be used well and they can [also] be abused." The concerns are many layered:
Discriminatory practices
For years now, bioethicists have expressed concerns about employee-sponsored wellness programs that encourage fitness while also tracking employee health data."Getting access to your health data can change the way your employer thinks about your employability," says Keisha Ray, assistant professor at the University of Texas Health Science Center at Houston (UTHealth). Such access can lead to discriminatory practices against employees that are less fit. "Surveillance medicine only heightens those risks," says Ray.
Who owns the data?
Surveillance medicine may help "democratize healthcare" which could be a good thing, says Anita Ho, an associate professor in bioethics at both the University of California, San Francisco and at the University of British Columbia. It would enable easier access by patients to their health data, delivered to smart phones, for example, rather than waiting for a call from the doctor. But, she also wonders who will own the data collected and if that owner has the right to share it or sell it. "A direct-to-consumer device is where the lines get a little blurry," says Ho. Currently, health data collected by Apple Watch is owned by Apple. "So we have to ask bigger ethical questions in terms of what consent should be required" by users.
Insurance coverage
"Consumers of these products deserve some sort of assurance that using a product that will predict future needs won't in any way jeopardize their ability to access care for those needs," says Hastings Center bioethicist Carolyn Neuhaus. She is urging lawmakers to begin tackling policy issues created by surveillance medicine, now, well ahead of the technology becoming mainstream, not unlike GINA, the Genetic Information Nondiscrimination Act of 2008 -- a federal law designed to prevent discrimination in health insurance on the basis of genetic information.
And, because not all Americans have insurance, Ho wants to know, who's going to pay for this technology and how much will it cost?
Trusting our guts
Some bioethicists are concerned that surveillance technology will reduce individuals to their "risk profiles," leaving health care systems to perceive them as nothing more than a "bundle of health and security risks." And further, in our quest to predict and prevent ailments, Neuhaus wonders if an over-reliance on data could damage the ability of future generations to trust their gut and tune into their own bodies?
It "sounds kind of hippy-dippy and feel-goodie," she admits. But in our culture of medicine where efficiency is highly valued, there's "a tendency to not value and appreciate what one feels inside of their own body … [because] it's easier to look at data than to listen to people's really messy stories of how they 'felt weird' the other day. It takes a lot less time to look at a sheet, to read out what the sensor implanted inside your body or planted around your house says."
Ho, too, worries about lost narratives. "For surveillance medicine to actually work we have to think about how we educate clinicians about the utility of these devices and how to how to interpret the data in the broader context of patients' lives."
Over-diagnosing
While one of the goals of surveillance medicine is to cut down on doctor visits, Ho wonders if the technology will have the opposite effect. "People may be going to the doctor more for things that actually are benign and are really not of concern yet," says Ho. She is also concerned that surveillance tools could make healthcare almost "recreational" and underscores the importance of making sure that the goals of surveillance medicine are met before the technology is unleashed.
"We can't just assume that any of these technologies are inherently technologies of liberation."
AI doesn't fix existing healthcare problems
"Knowing that you're going to have a fall or going to relapse or have a disease isn't all that helpful if you have no access to the follow-up care and you can't afford it and you can't afford the prescription medication that's going to ward off the onset," says Neuhaus. "It may still be worth knowing … but we can't fool ourselves into thinking that this technology is going to reshape medicine in America if we don't pay attention to … the infrastructure that we don't currently have."
Race-based medicine
How surveillances devices are tested before being approved for human use is a major concern for Ho. In recent years, alerts have been raised about the homogeneity of study group participants — too white and too male. Ho wonders if the devices will be able to "accurately predict the disease progression for people whose data has not been used in developing the technology?" COVID-19 has killed Black people at a rate 2.5 time greater than white people, for example, and new, virtual clinical research is focused on recruiting more people of color.
The Biggest Question
"We can't just assume that any of these technologies are inherently technologies of liberation," says Metzl.
Especially because we haven't yet asked the 64-thousand dollar question: Would patients even want to know?
Jenny Ahlstrom is an IT professional who was diagnosed at 43 with multiple myeloma, a blood cancer that typically attacks people in their late 60s and 70s and for which there is no cure. She believes that most people won't want to know about their declining health in real time. People like to live "optimistically in denial most of the time. If they don't have a problem, they don't want to really think they have a problem until they have [it]," especially when there is no cure. "Psychologically? That would be hard to know."
Ahlstrom says there's also the issue of trust, something she experienced first-hand when she launched her non-profit, HealthTree, a crowdsourcing tool to help myeloma patients "find their genetic twin" and learn what therapies may or may not work. "People want to share their story, not their data," says Ahlstrom. "We have been so conditioned as a nation to believe that our medical data is so valuable."
Metzl acknowledges that adoption of new technologies will be uneven. But he also believes that "over time, it will be abundantly clear that it's much, much cheaper to predict and prevent disease than it is to treat disease once it's already emerged."
Beyond cost, the tremendous potential of these technologies to help us live healthier and longer lives is a game-changer, he says, as long as we find ways "to ultimately navigate this terrain and put systems in place ... to minimize any potential harms."
How Smallpox Was Wiped Off the Planet By a Vaccine and Global Cooperation
The world's last recorded case of endemic smallpox was in Ali Maow Maalin, of Merka, Somalia, in October 1977. He made a full recovery.
For 3000 years, civilizations all over the world were brutalized by smallpox, an infectious and deadly virus characterized by fever and a rash of painful, oozing sores.
Doctors had to contend with wars, floods, and language barriers to make their campaign a success.
Smallpox was merciless, killing one third of people it infected and leaving many survivors permanently pockmarked and blind. Although smallpox was more common during the 18th and 19th centuries, it was still a leading cause of death even up until the early 1950s, killing an estimated 50 million people annually.
A Primitive Cure
Sometime during the 10th century, Chinese physicians figured out that exposing people to a tiny bit of smallpox would sometimes result in a milder infection and immunity to the disease afterward (if the person survived). Desperate for a cure, people would huff powders made of smallpox scabs or insert smallpox pus into their skin, all in the hopes of getting immunity without having to get too sick. However, this method – called inoculation – didn't always work. People could still catch the full-blown disease, spread it to others, or even catch another infectious disease like syphilis in the process.
A Breakthrough Treatment
For centuries, inoculation – however imperfect – was the only protection the world had against smallpox. But in the late 18th century, an English physician named Edward Jenner created a more effective method. Jenner discovered that inoculating a person with cowpox – a much milder relative of the smallpox virus – would make that person immune to smallpox as well, but this time without the possibility of actually catching or transmitting smallpox. His breakthrough became the world's first vaccine against a contagious disease. Other researchers, like Louis Pasteur, would use these same principles to make vaccines for global killers like anthrax and rabies. Vaccination was considered a miracle, conferring all of the rewards of having gotten sick (immunity) without the risk of death or blindness.
Scaling the Cure
As vaccination became more widespread, the number of global smallpox deaths began to drop, particularly in Europe and the United States. But even as late as 1967, smallpox was still killing anywhere from 10 to 15 million people in poorer parts of the globe. The World Health Assembly (a decision-making body of the World Health Organization) decided that year to launch the first coordinated effort to eradicate smallpox from the planet completely, aiming for 80 percent vaccine coverage in every country in which the disease was endemic – a total of 33 countries.
But officials knew that eradicating smallpox would be easier said than done. Doctors had to contend with wars, floods, and language barriers to make their campaign a success. The vaccination initiative in Bangladesh proved the most challenging, due to its population density and the prevalence of the disease, writes journalist Laurie Garrett in her book, The Coming Plague.
In one instance, French physician Daniel Tarantola on assignment in Bangladesh confronted a murderous gang that was thought to be spreading smallpox throughout the countryside during their crime sprees. Without police protection, Tarantola confronted the gang and "faced down guns" in order to immunize them, protecting the villagers from repeated outbreaks.
Because not enough vaccines existed to vaccinate everyone in a given country, doctors utilized a strategy called "ring vaccination," which meant locating individual outbreaks and vaccinating all known and possible contacts to stop an outbreak at its source. Fewer than 50 percent of the population in Nigeria received a vaccine, for example, but thanks to ring vaccination, it was eradicated in that country nonetheless. Doctors worked tirelessly for the next eleven years to immunize as many people as possible.
The World Health Organization declared smallpox officially eradicated on May 8, 1980.
A Resounding Success
In November 1975, officials discovered a case of variola major — the more virulent strain of the smallpox virus — in a three-year-old Bangladeshi girl named Rahima Banu. Banu was forcibly quarantined in her family's home with armed guards until the risk of transmission had passed, while officials went door-to-door vaccinating everyone within a five-mile radius. Two years later, the last case of variola major in human history was reported in Somalia. When no new community-acquired cases appeared after that, the World Health Organization declared smallpox officially eradicated on May 8, 1980.
Because of smallpox, we now know it's possible to completely eliminate a disease. But is it likely to happen again with other diseases, like COVID-19? Some scientists aren't so sure. As dangerous as smallpox was, it had a few characteristics that made eradication possibly easier than for other diseases. Smallpox, for instance, has no animal reservoir, meaning that it could not circulate in animals and resurge in a human population at a later date. Additionally, a person who had smallpox once was guaranteed immunity from the disease thereafter — which is not the case for COVID-19.
In The Coming Plague, Japanese physician Isao Arita, who led the WHO's Smallpox Eradication Unit, admitted to routinely defying orders from the WHO, mobilizing to parts of the world without official approval and sometimes even vaccinating people against their will. "If we hadn't broken every single WHO rule many times over, we would have never defeated smallpox," Arita said. "Never."
Still, thanks to the life-saving technology of vaccines – and the tireless efforts of doctors and scientists across the globe – a once-lethal disease is now a thing of the past.