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.]
GOOD10: The Pandemic Issue explores big-picture ways that science innovation and communication can usher in a more equitable, more progress-oriented, and safer world.
This issue is a collaboration among GOOD, leapsmag, and the Aspen Institute Science & Society Program.
The GOOD10 format explores fundamental issues facing humanity through the lenses of ten forces pushing the needle toward progress: Places, Philanthropists, Celebrities, Whistleblowers, Companies, Media, Products, Politicians, Scientists, and Actions. Across these categories, we seek to present unexpected and encouraging paradigms emerging from this historic crisis.
This special issue is available as an e-reader version for both desktop and mobile. It is also available as a free downloadable PDF.
TABLE OF CONTENTS:
- PLACES:
55 Lessons Learned About Science Communication Around the World; Quarantining Our Way Into Outer Space - PLACES:
Quarantining Our Way Into Outer Space - PHILANTHROPISTS:
An Exclusive Interview with Wendy Schmidt about Science in the Pandemic Era - CELEBRITIES:
Neil deGrasse Tyson Wants Celebrities to Promote Scientists - WHISTLEBLOWERS:
The Science Sleuths Holding Fraudulent Research Accountable - COMPANIES:
The Biggest Challenge for a COVID-19 Vaccine: Making It Accessible and Affordable - MEDIA:
Isaac Asimov on the History of Infectious Disease—And How Humanity Learned To Fight Back - PRODUCTS:
Will COVID-19 Pave the Way For DIY Precision Medicine? - POLITICIANS:
Will the Pandemic Propel STEM Experts to Political Power? - SCIENTISTS:
Would a Broad-Spectrum Antiviral Drug Stop the Pandemic? - ACTIONS:
Pseudoscience is Rampant: How Not to Fall For It - ACTIONS:
How COVID-19 Could Usher In a New Age of Collective Drug Discovery
THE EVENT:
"The Pandemic Science Summit" focused on how science innovation is key to society's future stability as we emerge from the pandemic, featuring:
Christopher Bailey – Arts and Health Lead, World Health Organization
Elisabeth Bik, Ph.D. – Microbiologist and scientific integrity consultant
Margaret Hamburg, M.D. – Foreign Secretary, National Academy of Medicine; former Commissioner, U.S. Food and Drug Administration
Peggy Oti-Boateng, Ph.D. – Director, Division of Science Policy and Capacity- Building, UNESCO
George Yancopoulos, M.D., Ph.D. – President and Chief Scientific Officer, Regeneron Pharmaceuticals
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.
Two Conservative Icons Gave Opposite Advice on COVID-19. Those Misinformed Died in Higher Numbers, New Study Reports.
Sean Hannity (left) and Tucker Carlson each told their audience opposite information about the threat of COVID-19, with serious consequences for those misinformed.
The news sources that you consume can kill you - or save you. That's the fundamental insight of a powerful new study about the impact of watching either Sean Hannity's news show Hannity or Tucker Carlson's Tucker Carlson Tonight. One saved lives and the other resulted in more deaths, due to how each host covered COVID-19.
Carlson took the threat of COVID-19 seriously early on, more so than most media figures on the right or left.
This research illustrates the danger of falling for health-related misinformation due to judgment errors known as cognitive biases. These dangerous mental blindspots stem from the fact that our gut reactions evolved for the ancient savanna environment, not the modern world; yet the vast majority of advice on decision making is to "go with your gut," despite the fact that doing so leads to so many disastrous outcomes. These mental blind spots impact all areas of our life, from health to politics and even shopping, as a survey by a comparison purchasing website reveals. We need to be wary of cognitive biases in order to survive and thrive during this pandemic.
Sean Hannity vs. Tucker Carlson Coverage of COVID-19
Hannity and Tucker Carlson Tonight are the top two U.S. cable news shows, both on Fox News. Hannity and Carlson share very similar ideological profiles and have similar viewership demographics: older adults who lean conservative.
One notable difference, however, relates to how both approached coverage of COVID-19, especially in February and early March 2020. Researchers at the Becker Friedman Institute for Economics at the University of Chicago decided to study the health consequences of this difference.
Carlson took the threat of COVID-19 seriously early on, more so than most media figures on the right or left. Already on January 28, way earlier than most, Carlson spent a significant part of his show highlighting the serious dangers of a global pandemic. He continued his warnings throughout February. On February 25, Carlson told his viewers: "In this country, more than a million would die."
By contrast, Hannity was one of the Fox News hosts who took a more extreme position in downplaying COVID-19, frequently comparing it to the flu. On February 27, he said "And today, thankfully, zero people in the United States of America have died from the coronavirus. Zero. Now, let's put this in perspective. In 2017, 61,000 people in this country died from influenza, the flu. Common flu." Moreover, Hannity explicitly politicized COVID-19, claiming that "[Democrats] are now using the natural fear of a virus as a political weapon. And we have all the evidence to prove it, a shameful politicizing, weaponizing of, yes, the coronavirus."
However, after President Donald Trump declared COVID-19 a national emergency in mid-March, Hannity -- and other Fox News hosts -- changed their tune to align more with Carlson's, acknowledging the serious dangers of the virus.
The Behavior and Health Consequences
The Becker Friedman Institute researchers investigated whether the difference in coverage impacted behaviors. They conducted a nationally representative survey of over 1,000 people who watch Fox News at least once a week, evaluating both viewership and behavior changes in response to the pandemic, such as social distancing and improving hygiene.
Next, the study compared people's behavior changes to viewing patterns. The researchers found that "viewers of Hannity changed their behavior five days later than viewers of other shows, while viewers of Tucker Carlson Tonight changed their behavior three days earlier than viewers of other shows." The statistical difference was more than enough to demonstrate significance; in other words, it was extremely unlikely to occur by chance -- so unlikely as to be negligible.
Did these behavior changes lead to grave consequences? Indeed.
The paper compared the popularity of each show in specific counties to data on COVID-19 infections and deaths. Controlling for a wide variety of potential confounding variables, the study found that areas of the country where Hannity is more popular had more cases and deaths two weeks later, the time that it would take for the virus to start manifesting itself. By March 21st, the researchers found, there were 11 percent more deaths among Hannity's viewership than among Carlson's, again with a high degree of statistical significance.
The study's authors concluded: "Our findings indicate that provision of misinformation in the early stages of a pandemic can have important consequences for health outcomes."
Such outcomes stem from excessive trust that our minds tend to give those we see as having authority, even if they don't possess expertise in the relevant subject era.
Cognitive Biases and COVID-19 Misinformation
It's critically important to recognize that the study's authors did not seek to score any ideological points, given the broadly similar ideological profiles of the two hosts. The researchers simply explored the impact of accurate and inaccurate information about COVID-19 on the viewership. Clearly, the false information had deadly consequences.
Such outcomes stem from excessive trust that our minds tend to give those we see as having authority, even if they don't possess expertise in the relevant subject era -- such as media figures that we follow. This excessive trust - and consequent obedience - is called the "authority bias."
A related mental pattern is called "emotional contagion," in which we are unwittingly infected with the emotions of those we see as leaders. Emotions can motivate action even in the absence of formal authority, and are particularly important for those with informal authority, including thought leaders like Carlson and Hannity.
Thus, Hannity telling his audience that Democrats used anxiety about the virus as a political weapon led his audience to reject fears of COVID-19, even though such a reaction and consequent behavioral changes were the right response. Carlson's emphasis on the deadly nature of this illness motivated his audience to take appropriate precautions.
Authority bias and emotional contagion facilitate the spread of misinformation and its dangers, at least when we don't take the steps necessary to figure out the facts. Such steps can range from following best fact-checking practices to getting your information from news sources that commit publicly to being held accountable for truthfulness. Remember, the more important and impactful such information may be for your life, the more important it is to take the time to evaluate it accurately to help you make the best decisions.