Abortions Before Fetal Viability Are Legal: Might Science and the Change on the Supreme Court Undermine That?
This article is part of the magazine, "The Future of Science In America: The Election Issue," co-published by LeapsMag, the Aspen Institute Science & Society Program, and GOOD.
Viability—the potential for a fetus to survive outside the womb—is a core dividing line in American law. For almost 50 years, the Supreme Court of the United States has struck down laws that ban all or most abortions, ruling that women's constitutional rights include choosing to end pregnancies before the point of viability. Once viability is reached, however, states have a "compelling interest" in protecting fetal life. At that point, states can choose to ban or significantly restrict later-term abortions provided states allow an exception to preserve the life or health of the mother.
This distinction between a fetus that could survive outside its mother's body, albeit with significant medical intervention, and one that could not, is at the heart of the court's landmark 1973 decision in Roe v. Wade. The framework of viability remains central to the country's abortion law today, even as some states have passed laws in the name of protecting women's health that significantly undermine Roe. Over the last 30 years, the Supreme Court has upheld these laws, which have the effect of restricting pre-viability abortion access, imposing mandatory waiting periods, requiring parental consent for minors, and placing restrictions on abortion providers.
Viability has always been a slippery notion on which to pin legal rights.
Today, the Guttmacher Institute reports that more than half of American women live in states whose laws are considered hostile to abortion, largely as a result of these intrusions on pre-viability abortion access. Nevertheless, the viability framework stands: while states can pass pre-viability abortion restrictions that (ostensibly) protect the health of the woman or that strike some kind a balance between women's rights and fetal life, it is only after viability that they can completely favor fetal life over the rights of the woman (with limited exceptions when the woman's life is threatened). As a result, judges have struck down certain states' so-called heartbeat laws, which tried to prohibit abortions after detection of a fetal heartbeat (as early as six weeks of pregnancy). Bans on abortion after 12 or 15 weeks' gestation have also been reversed.
Now, with a new Supreme Court Justice expected to be hostile to abortion rights, advances in the care of preterm babies and ongoing research on artificial wombs suggest that the point of viability is already sooner than many assume and could soon be moved radically earlier in gestation, potentially providing a legal basis for earlier and earlier abortion bans.
Viability has always been a slippery notion on which to pin legal rights. It represents an inherently variable and medically shifting moment in the pregnancy timeline that the Roe majority opinion declined to firmly define, noting instead that "[v]iability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." Even in 1977, this definition was an optimistic generalization. Every baby is different, and while some 28-week infants born the year Roe was decided did indeed live into adulthood, most died at or shortly after birth. The prognosis for infants born at 24 weeks was much worse.
Today, a baby born at 28 weeks' gestation can be expected to do much better, largely due to the development of surfactant treatment in the early 1990s to help ease the air into babies' lungs. Now, the majority of 24-week-old babies can survive, and several very premature babies, born just shy of 22 weeks' gestation, have lived into childhood. All this variability raises the question: Should the law take a very optimistic, if largely unrealistic, approach to defining viability and place it at 22 weeks, even though the overall survival rate for those preemies remains less than 10% today? Or should the law recognize that keeping a premature infant alive requires specialist care, meaning that actual viability differs not just pregnancy-to-pregnancy but also by healthcare facility and from country to country? A 24-week premature infant born in a rural area or in a developing nation may not be viable as a practical matter, while one born in a major U.S. city with access to state-of-the-art care has a greater than 70% chance of survival. Just as some extremely premature newborns survive, some full-term babies die before, during, or soon after birth, regardless of whether they have access to advanced medical care.
To be accurate, viability should be understood as pregnancy-specific and should take into account the healthcare resources available to that woman. But state laws can't capture this degree of variability by including gestation limits in their abortion laws. Instead, many draw a somewhat arbitrary line at 22, 24, or 28 weeks' gestation, regardless of the particulars of the pregnancy or the medical resources available in that state.
As variable and resource-dependent as viability is today, science may soon move that point even earlier. Ectogenesis is a term coined in 1923 for the growth of an organism outside the body. Long considered science fiction, this technology has made several key advances in the past few years, with scientists announcing in 2017 that they had successfully gestated premature lamb fetuses in an artificial womb for four weeks. Currently in development for use in human fetuses between 22 and 23 weeks' gestation, this technology will almost certainly seek to push viability earlier in pregnancy.
Ectogenesis and other improvements in managing preterm birth deserve to be celebrated, offering new hope to the parents of very premature infants. But in the U.S., and in other nations whose abortion laws are fixed to viability, these same advances also pose a threat to abortion access. Abortion opponents have long sought to move the cutoff for legal abortions, and it is not hard to imagine a state prohibiting all abortions after 18 or 20 weeks by arguing that medical advances render this stage "the new viability," regardless of whether that level of advanced care is available to women in that state. If ectogenesis advances further, the limit could be moved to keep pace.
The Centers for Disease Control and Prevention reports that over 90% of abortions in America are performed at or before 13 weeks, meaning that in the short term, only a small number women would be affected by shifting viability standards. Yet these women are in difficult situations and deserve care and consideration. Research has shown that women seeking later terminations often did not recognize that they were pregnant or had their dates quite wrong, while others report that they had trouble accessing a termination earlier in pregnancy, were afraid to tell their partner or parents, or only recently received a diagnosis of health problems with the fetus.
Shifts in viability over the past few decades have already affected these women, many of whom report struggling to find a provider willing to perform a termination at 18 or 20 weeks out of concern that the woman may have her dates wrong. Ever-earlier gestational limits would continue this chilling effect, making doctors leery of terminating a pregnancy that might be within 2–4 weeks of each new ban. Some states' existing gestational limits on abortion are also inconsistent with prenatal care, which includes genetic testing between 12 and 20 weeks' gestation, as well as an anatomy scan to check the fetus's organ development performed at approximately 20 weeks. If viability moves earlier, prenatal care will be further undermined.
Perhaps most importantly, earlier and earlier abortion bans are inconsistent with the rights and freedoms on which abortion access is based, including recognition of each woman's individual right to bodily integrity and decision-making authority over her own medical care. Those rights and freedoms become meaningless if abortion bans encroach into the weeks that women need to recognize they are pregnant, assess their options, seek medical advice, and access appropriate care. Fetal viability, with its shifting goalposts, isn't the best framework for abortion protection in light of advancing medical science.
Ideally, whether to have an abortion would be a decision that women make in consultation with their doctors, free of state interference. The vast majority of women already make this decision early in pregnancy; the few who come to the decision later do so because something has gone seriously wrong in their lives or with their pregnancies. If states insist on drawing lines based on historical measures of viability, at 24 or 26 or 28 weeks, they should stick with those gestational limits and admit that they no longer represent actual viability but correspond instead to some form of common morality about when the fetus has a protected, if not absolute, right to life. Women need a reasonable amount of time to make careful and informed decisions about whether to continue their pregnancies precisely because these decisions have a lasting impact on their bodies and their lives. To preserve that time, legislators and the courts should decouple abortion rights from ectogenesis and other advances in the care of extremely premature infants that move the point of viability ever earlier.
[Editor's Note: This article was updated after publication to reflect Amy Coney Barrett's confirmation. To read other articles in this special magazine issue, visit the e-reader version.]
7 Reasons Why We Should Not Need Boosters for COVID-19
There are at least 7 reasons why immunity after vaccination or infection with COVID-19 should likely be long-lived. If durable, I do not think boosters will be necessary in the future, despite CEOs of pharmaceutical companies (who stand to profit from boosters) messaging that they may and readying such boosters. To explain these reasons, let's orient ourselves to the main components of the immune system.
There are two major arms of the immune system: B cells (which produce antibodies) and T cells (which are formed specifically to attack and kill pathogens). T cells are divided into two types, CD4 cells ("helper" T cells) and CD8 cells ("cytotoxic" T cells).
Each arm, once stimulated by infection or vaccine, should hopefully make "memory" banks. So if the body sees the pathogen in the future, these defenses should come roaring back to attack the virus and protect you from getting sick. Plenty of research in COVID-19 indicates a likely long-lasting response to the vaccine or infection. Here are seven of the most compelling reasons:
REASON 1: Memory B Cells Are Produced By Vaccines and Natural Infection
In one study, 12 volunteers who had never had Covid-19--and were fully vaccinated with two Pfizer/BioNTech shots-- underwent biopsies of their lymph nodes. This is where memory B cells are stored in places called "germinal centers". The biopsies were performed three, four, six, and seven weeks after the first mRNA vaccine shot, and were stained to reveal that germinal center memory B cells in the lymph nodes increased in concentration over time.
Natural infection also generates memory B cells. Even after antibody levels wane over time, strong memory B cells were detected in the blood of individuals six and eight months after infection in different studies. Indeed, the half-lives of the memory B cells seen in the study examining patients 8 months after COVID-19 led the authors to conclude that "B cell memory to SARS-CoV-2 was robust and is likely long-lasting." Reason #2 tells us that memory B cells can be active for a very long time indeed.
REASON #2: Memory B Cells Can Produce Neutralizing Antibodies If They See Infection Again Decades Later
Demonstrated production of memory B cells after vaccination or natural infection with COVID-19 is so important because memory B cells, once generated, can be activated to produce high levels of neutralizing antibodies against the pathogen even if encountered many years after the initial exposure. In one amazing study (published in 2008), researchers isolated memory B cells against the 1918 flu strain from the blood of 32 individuals aged 91-101 years. These people had been born on or before 1915 and had survived that pandemic.
Their memory B cells, when exposed to the 1918 flu strain in a test tube, generated high levels of neutralizing antibodies against the virus -- antibodies that then protected mice from lethal infection with this deadly strain. The ability of memory B cells to produce complex antibody responses against an infection nine decades after exposure speaks to their durability.
REASON #3: Vaccines or Natural Infection Trigger Strong Memory T Cell Immunity
All of the trials of the major COVID-19 vaccine candidates measured strong T cell immunity following vaccination, most often assessed by measuring SARS-CoV-2 specific T cells in the phase I/II safety and immunogenicity studies. There are a number of studies that demonstrate the production of strong T cell immunity to COVID-19 after natural infection as well, even when the infection was mild or asymptomatic.
The same study that showed us robust memory B cell production 8 months after natural infection also demonstrated strong and sustained memory T cell production. In fact, the half-lives of the memory T cells in this cohort were long (~125-225 days for CD8+ and ~94-153 days for CD4+ T cells), comparable to the 123-day half-life observed for memory CD8+ T cells after yellow fever immunization (a vaccine usually given once over a lifetime).
A recent study of individuals recovered from COVID-19 show that the initial T cells generated by natural infection mature and differentiate over time into memory T cells that will be "put in the bank" for sustained periods.
REASON #4: T Cell Immunity Following Vaccinations for Other Infections Is Long-Lasting
Last year, we were fortunate to be able to measure how T cell immunity is generated by COVID-19 vaccines, which was not possible in earlier eras when vaccine trials were done for other infections (such as measles, mumps, rubella, pertussis, diphtheria). Antibodies are just the "tip of the iceberg" when assessing the response to vaccination, but were the only arm of the immune response that could be measured following vaccination in the past.
Measuring pathogen-specific T cell responses takes sophisticated technology. However, T cell responses, when assessed years after vaccination for other pathogens, has been shown to be long-lasting. For example, in one study of 56 volunteers who had undergone measles vaccination when they were much younger, strong CD8 and CD4 cell responses to vaccination could be detected up to 34 years later.
REASON #5: T Cell Immunity to Related Coronaviruses That Caused Severe Disease is Long-Lasting
SARS-CoV-2 is a coronavirus that causes severe disease, unlike coronaviruses that cause the common cold. Two other coronaviruses in the recent past caused severe disease, specifically Severely Acute Respiratory Distress Syndrome (SARS) in late 2002-2003 and Middle East Respiratory Syndrome (MERS) in 2011.
A study performed in 2020 demonstrated that the blood of 23 recovered SARS patients possess long-lasting memory T cells that were still reactive to SARS 17 years after the outbreak in 2003. Many scientists expect that T cell immunity to SARS-CoV-2 will be equally durable to that of its cousin.
REASON #6: T Cell Responses from Vaccination and Natural Infection With the Ancestral Strain of COVID-19 Are Robust Against Variants
Even though antibody responses from vaccination may be slightly lower against various COVID-19 variants of concern that have emerged in recent months, T cell immunity after vaccination has been shown to be unperturbed by mutations in the spike protein (in the variants). For instance, T cell responses after mRNA vaccines maintained strong activity against different variants (including P.1 Brazil variant, B.1.1.7 UK variant, B.1.351 South Africa variant and the CA.20.C California variant) in a recent study.
Another study showed that the vaccines generated robust T cell immunity that was unfazed by different variants, including B.1.351 and B.1.1.7. The CD4 and CD8 responses generated after natural infection are equally robust, showing activity against multiple "epitopes" (little segments) of the spike protein of the virus. For instance, CD8 cells responds to 52 epitopes and CD4 cells respond to 57 epitopes across the spike protein, so that a few mutations in the variants cannot knock out such a robust and in-breadth T cell response. Indeed, a recent paper showed that mRNA vaccines were 97.4 percent effective against severe COVID-19 disease in Qatar, even when the majority of circulating virus there was from variants of concern (B.1.351 and B.1.1.7).
REASON #7: Coronaviruses Don't Mutate Quickly Like Influenza, Which Requires Annual Booster Shots
Coronaviruses are RNA viruses, like influenza and HIV (which is actually a retrovirus), but do not mutate as quickly as either one. The reason that coronaviruses don't mutate very rapidly is that their replicating mechanism (polymerase) has a strong proofreading mechanism: If the virus mutates, it usually goes back and self-corrects. Mutations can arise with high rates of replication when transmission is very frequent -- as has been seen in recent months with the emergence of SARS-CoV-2 variants during surges. However, the COVID-19 virus will not be mutating like this when we tamp down transmission with mass vaccination.
In conclusion, I and many of my infectious disease colleagues expect the immunity from natural infection or vaccination to COVID-19 to be durable. Let's put discussion of boosters aside and work hard on global vaccine equity and distribution since the pandemic is not over until it is over for us all.
The "Making Sense of Science" podcast features interviews with leading medical and scientific experts about the latest developments and the big ethical and societal questions they raise. This monthly podcast is hosted by journalist Kira Peikoff, founding editor of the award-winning science outlet Leaps.org.
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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.