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.]
“You First”: Who Will Be Front in Line to Get a COVID Vaccine?
A small subset of hospitals and institutions in high-risk areas are likely to go first, according to bioethicist Arthur Caplan.
There is a huge amount riding on the discovery of a vaccine effective against the Covid-19 virus.
Making 660 million of anything without a glitch is—to put it mildly—a tall order in a nation that remains short on masks, gowns, and diagnostic tests despite months of trying to meet demand.
The world is waiting for a vaccine that can liberate everyone from the constraints on liberty required by existing efforts to fight the virus with public health measures such as masks, isolation, and quarantining. President Trump, for the most part, has rejected tough public health measures. Instead he has staked his political future and those of the governors and Congressional Republicans who have followed his lead on delivering a vaccine before Election Day as the solution to the COVID-19 pandemic in the USA. Many scientific experts have been sounding encouraging notes about having a vaccine by the end of this year or early next, as have many CEOs among the more than 160 companies chasing various strategies to identify a safe and effective vaccine.
But the reality is that no matter how fast a vaccine appears, those who might benefit will face a significant period of time before they could receive one. This is due to a variety of realities. Any vaccine faces various regulatory hurdles to insure safety and efficacy. This means completing large-scale studies in tens of thousands of subjects hoping for enough cases of blunted natural infection versus a large placebo control group to determine that a vaccine works. And that takes time--plus adding in delays in manufacturing and delivery, which will create logjams for most prospective recipients.
Shipping is not going to be easy with cold chain storage requirements from -20 to -70 degrees Celsius, from factory to a doctor's office, depending on the vaccine. In addition, many of the vaccines under development require two doses--that is 660 million shots to cover just those in the United States. Making 660 million of anything without a glitch is—to put it mildly—a tall order in a nation that remains short on masks, gowns, and diagnostic tests, despite months of trying to meet demand.
There are three scenarios under which a vaccine can appear but without being in any way available to all Americans.
The first is a vaccine under development in the USA or with some USA financing begins to show promise before a full clinical trial is completed. Current vaccine trials are supervised by Data Safety and Monitoring Boards and those committees could tell a CEO eager to be first to market that their vaccine is looking good at the study's half-way point.
The CEO and vaccine manufacturing company's board then let the White House know that a magic bullet which can ensure the President's reelection is in hand. The President, as he has done many times with other COVID treatments, most recently convalescent plasma, intervenes with the FDA and demands approval using an Emergency Use Authorization, or invoking the Federal Right to Try law he and Mike Pence are constantly touting. FDA Commissioner Steve Hahn folds and an extremely limited supply of vaccine, maybe only 100,000 doses, is available just before Election Day.
The second scenario is that another nation discovers a vaccine that looks safe and effective and the USA is able to buy some supply of it. But again, we are likely, initially, to get an extremely limited amount.
Lastly, the vaccine is approved in a standard manner. A full randomized trial is done, the endpoints are met, and no serious adverse events are identified. It is a USA-funded vaccine so most of it is coming here first. Still the vials and needles and plugs need to be quality-controlled and shipped and stored at the right temperatures. Information sheets and consent forms need to be readied, offered, and signed. Odds are you won't see any of this vaccine until late next year. So, who is going to get the first shots?
Some people under all of these scenarios are going to say, "Count me out." They don't trust vaccines or they don't trust the government to provide a safe one. Others may say, "The first one out of the box may be OK, but I am going to wait for the 'best' one before I take one." Even if those numbers are large, it is still certain that there will be more takers than can be vaccinated.
If you look at the discussion of vaccine rationing, almost everybody — including government officials, FDA officials, advisory panelists and ethicists — says the first group that should get vaccinated are at-risk healthcare workers. They say it, although they're not always clear about why.
One reason is that you need to give it to health care workers first because they will keep the healthcare system going. Another is that you need to give it to them first because they face more risk and they should get rewarded for having done and continuing to do that -- their bravery ought to be rewarded and their risk reduced.
A subset of hospitals and institutions in high risk areas will [go first] and that will be it for a significant period of time.
Both of these arguments for health care worker priority are not completely convincing. Food and power and vaccine manufacturing are arguably as important as health care, but workers in those areas don't get priority attention in most guidelines. And many Americans face risks from COVID comparable to health care workers, especially those who are not on the front lines in ERs and ICUs. Prisoners, military personnel who work on warships, the elderly, nursing home residents, and poor minorities are disproportionately affected by COVID. However, none of them are going first, nor is it clear how to weigh their claims in competing against one another for a scarce vaccine.
But, there's something else that's interesting in deciding who goes first. When people all agree, as they almost always do, that it's health care workers who must go first, a huge problem remains. What is the definition of who's a healthcare worker? You could easily get millions and millions of people designated as healthcare workers who would have a claim to go first.
We normally think that health care worker means doctors and nurses. But, if we go beyond those who work in ERs and ICUs, the number is big. And we must, because no ER or ICU can run without huge numbers of supporting individuals.
If you don't vaccinate lab technicians, people who clean the rooms, make food, transport patients, provide security, do the laundry, run the IT, students, volunteers and so on, you're not going to have a functioning hospital. If you don't include those working in nursing homes, home care and hospices along with those making and supplying vital equipment and bringing in patients via ambulances, police cars, and fire trucks, you don't have a functioning ICU, much less a health care system.
The total number involved could easily exceed tens of millions depending on how broadly the definition is set.
So, what is likely to happen is that health care workers will not go first. A subset of hospitals and institutions in high risk areas will and that will be it for a significant period of time. Health care institutions in hot spots, plus the supporting services they need will go first and then vaccine availability will slowly expand to other health care institutions and the essential workers needed to keep them functioning. Then consideration will also be given to how best to control the spread of the virus in selecting hot spots versus saving prisoners or the poor. And you can be sure, whatever the guidelines are, that the military and security folks will demand their share.
For many, many months if not a year or more, most people will not have to face a choice about vaccinating. The supply just won't be there for the general public. It is a small sample of high-risk health care workers including vaccine manufacturing employees and shippers, plus essential workers to keep hospitals and nursing homes going, who will be first in line. Odds are you and your family will still be wearing masks and social distancing well into next year.
Virtual clinical trials are helping to eradicate logistical barriers to clinical trial participation, though trust is still an issue.
Herman Taylor, director of the cardiovascular research institute at Morehouse college, got in touch with UnitedHealth Group early in the pandemic.
The very people who most require solutions to COVID are those who are least likely to be involved in the search to find them.
A colleague he worked with at Grady Hospital in Atlanta was the guy when it came to studying sickle cell disease, a recessive genetic disorder that causes red blood cells to harden into half-moon shapes, causing cardiovascular problems. Sickle cell disease is more common in African Americans than it is in Caucasians, in part because having just one gene for the disease, called sickle cell trait, is protective against malaria, which is endemic to much of Africa. Roughly one in 12 African Americans carry sickle cell trait, and Taylor's colleague wondered if this could be one factor affecting differential outcomes for COVID-19.
UnitedHealth Group granted Taylor and his colleague the money to study sickle cell trait in COVID, and then, as they continued working together, they began to ask Taylor his opinion on other topics. As an insurance company, United had realized early in the pandemic that it was sitting on a goldmine of patient data—some 120 million patients' worth—that it could sift through to look for potential COVID treatments.
Their researchers thought they had found one: In a small subset of 14,000 people who'd contracted COVID, there was a group whose bills were paid by Medicare (which the researchers took as a proxy for older age). The people in this group who were taking ACE inhibitors, blood vessel dilators often used to treat high blood pressure, were 40 percent less likely to be hospitalized than those who were not taking the drug.
The connection between ACE inhibitors and COVID hospitalizations was a correlation, a statistical association. To determine whether the drugs had any real effect on COVID outcomes, United would have to perform another, more rigorous study. They would have to assign some people to receive small doses of ACE inhibitors, and others to receive placebos, and measure the outcomes under each condition. They planned to do this virtually, allowing study participants to sign up and be screened online, and sending drugs, thermometers, and tests through the mail. There were two reasons to do it this way: First, the U.S. Food and Drug Administration had been advising medical researchers to embrace new strategies in clinical trials as a way to protect participants during the pandemic.
The second reason was why they asked Herman Taylor to co-supervise it: Clinical trials have long had a diversity problem. And going virtual is a potential solution.
Since the beginning of the pandemic, COVID-19 has infected people of color at a rate of three times that of Caucasians (killing Black people at a rate 2.5 times as high, and Hispanic and American Indian or Alaska Native people at a rate 1.3 times as high). A number of explanations have been put forth to explain this disproportionate toll. Among them: higher levels of poverty, essential jobs that increase exposure, and lower quality or inadequate access to medical care.
Unfortunately, these same factors also affect who participates in research. People of color may be less likely to have doctors recommend studies to them. They may not have the time or the resources to hang out in a waiting room for hours. They may not live near large research institutions that conduct trials. The result is that new treatments, even for diseases that affect Latin, Native American, or African American populations in greater proportions, are studied mostly in white volunteers. The very people who most require solutions to COVID are those who are least likely to be involved in the search to find them.
Virtual trials can alleviate a number of these problems. Not only can people find and request to participate in these types of trials through their phones or computers, virtual trials also cover more costs, include a larger geographical range, and have inherently flexible hours.
"[In a traditional study] you have to go to a doctor's office to enroll and drive a couple of hours and pay $20 for parking and pay $15 for a sandwich in the hospital cafeteria and arrange for daycare for your kids and take time off of work," says Dr. Jonathan Cotliar, chief medical officer of Science37, a platform that investigators can hire to host and organize their trials virtually. "That's a lot just for one visit, much less over the course of a six to 12-month study."
Cotliar's data suggests that virtual trials' enhanced access seriously affects the racial makeup of a given study's participant pool. Sixty percent of patients enrolled in Science37 trials are non-Caucasian, which is, Cotliar says, "staggering compared to what you find in traditional site-based research."
But access is not the only barrier to including more people of color in clinical trials. There is also trust. When agreeing to sign up for research, undocumented immigrants may worry about finding themselves in legal trouble or without any medical support should something go wrong. In a country with a history of experimenting on African Americans without their consent, black people may not trust institutions not to use them as guinea pigs.
"A lot of people report being somewhat disregarded or disrespected once entering the healthcare system," Taylor says. "You take it all together, then people wonder, well, okay, this is how the system tends to regard me, yet now here come these people doing research, and they're all about getting me into their studies." Not so surprising that a lot of people may respond with a resounding "No thanks."
United's ACE inhibitor trial was notable for addressing both of these challenges. In addition to covering costs and allowing study subjects to participate from their own homes, it was being co-sponsored by a professor at Morehouse, one of the country's historic black colleges and universities (often abbreviated HBCUs). United was recruiting heavily in Atlanta, whose population is 52 percent African American. The study promised a thoughtful introduction to a more egalitarian future of medical research.
There's just one problem: It isn't going to happen.
This month, in preparation for the study, United reanalyzed their ACE inhibitor data with all the new patients who'd contracted COVID in the months since their first analysis. Their original data set had been concentrated in the Northeast, mostly New York City, where the earliest outbreak took place. In the 12 weeks it had taken them to set up the virtual followup study, epicenters had shifted. United's second, more geographically comprehensive sample had ten times the number of people in it. And in that sample, the signal simply disappeared.
"I was shocked, but that's the reality," says Deneen Vojta, executive vice president of enterprise research and development for UnitedHealth Group. "You make decisions based on the data, but when you get more data, more information, you might make a different decision. The answer is the answer."
There was no point in running a virtual ACE inhibitor study if a larger, more representative sample of people indicated the drug was unlikely to help anyone. Still, the model United had established to run the trial remains viable. Even as she scrapped the ACE inhibitor study, Vojta hoped not just to continue United's relationship with Dr. Taylor and Morehouse, but to formalize it. Virtual platforms are still an important part of their forthcoming trials.
If people don't believe a vaccine has been created with them in mind, then they won't take it, and it won't matter whether it exists or not.
United is not alone in this approach. As phase three trials for vaccines against SARS CoV-2 get underway, big pharma companies have been publicly articulating their own strategies for including more people of color in clinical trials, and many of these include virtual elements. Janelle Sabo, global head of clinical innovation, systems and clinical supply chain at Eli Lilly, told me that the company is employing home health and telemedicine, direct-to-patient shipping and delivery, and recruitment using social media and geolocation to expand access to more diverse populations.
Dr. Macaya Douoguih, Head of Clinical Development and Medical Affairs for Janssen Vaccines under Johnson & Johnson, spoke to Congress about this issue during a July hearing before the House Energy and Commerce Oversight and Investigations Subcommittee. She said that the company planned to institute a "focused digital and community outreach plan to provide resources and opportunities to encourage participation in our clinical trials," and had partnered with Johns Hopkins Bloomberg School of Public Health "to understand how the COVID-19 crisis is affecting different communities in the United States."
But while some of these plans are well thought-out, others are concerningly nebulous, featuring big pronouncements but fewer tangible strategies. In that same July hearing, Massachusetts representative Joe Kennedy III (D) sounded like a frustrated teacher when admonishing four of the five leads of the present pharma companies (AstraZeneca, Johnson & Johnson, Merck, Moderna, and Pfizer) for not explaining exactly how they'd ensure diversity both in the study of their vaccines, and in their eventual distribution.
This matters: The uptake of the flu vaccine is 10 percentage points lower in both the African American and Hispanic communities than it is in Caucasians. A Pew research study conducted early in the pandemic found that just 54 percent of Black adults said they "would definitely or probably get a coronavirus vaccine," compared to 74 percent of Whites and Hispanics.
"As a good friend of mine, Dr. [James] Hildreth, president at Meharry, another HBC medical school, likes to say: 'A vaccine is great, but it is the vaccination that saves people,'" Taylor says. If people don't believe a vaccine has been created with them in mind, then they won't take it, and it won't matter whether it exists or not.
In this respect, virtual platforms remain an important first step, at least in expanding admittance. In June, United Health opened up a trial to their entire workforce for a computer game that could treat ADHD. In less than two months, 1,743 people had signed up for it, from all different socioeconomic groups, from all over the country. It was inching closer to the kind of number you need for a phase three vaccine trial, which can require tens of thousands of people. Back when they'd been planning the ACE inhibitor study, United had wanted 9,600 people to agree to participate.
Now, with the help of virtual enrollment, they hope they can pull off similarly high numbers for the COVID vaccine trial they will be running for an as-yet-unnamed pharmaceutical partner. It stands to open in September.