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.]
The unprecedented scale and impact of the COVID-19 pandemic has caused scientists and engineers around the world to stop whatever they were working on and shift their research toward understanding a novel virus instead.
"We have confidence that we can use our system in the next pandemic."
For Guangyu Qiu, normally an environmental engineer at the Swiss Federal Laboratories for Materials Science and Technology, that means finding a clever way to take his work on detecting pollution in the air and apply it to living pathogens instead. He's developing a new type of biosensor to make disease diagnostics and detection faster and more accurate than what's currently available.
But even though this pandemic was the impetus for designing a new biosensor, Qiu actually has his eye on future disease outbreaks. He admits that it's unlikely his device will play a role in quelling this virus, but says researchers already need to be thinking about how to make better tools to fight the next one — because there will be a next one.
"In the last 20 years, there [have been] three different coronavirus [outbreaks] ... so we have to prepare for the coming one," Qiu says. "We have confidence that we can use our system in the next pandemic."
"A Really, Really Neat Idea"
His main concern is the diagnostic tool that's currently front and center for testing patients for SARS-Cov-2, the virus causing the novel coronavirus disease. The tool, called PCR (short for reverse transcription polymerase chain reaction), is the gold standard because it excels at detecting viruses in even very small samples of mucus. PCR can amplify genetic material in the limited sample and look for a genetic code matching the virus in question. But in many parts of the world, mucus samples have to be sent out to laboratories for that work, and results can take days to return. PCR is also notoriously prone to false positives and negatives.
"I read a lot of newspapers that report[ed] ... a lot of false negative or false positive results at the very beginning of the outbreak," Qiu says. "It's not good for protecting people to prevent further transmission of the disease."
So he set out to build a more sensitive device—one that's less likely to give you a false result. Qiu's biosensor relies on an idea similar to the dual-factor authentication required of anyone trying to access a secure webpage. Instead of verifying that a virus is really present by using one way of detecting genetic code, as with PCR, this biosensor asks for two forms of ID.
SARS-CoV-2 is what's called an RNA virus, which means it has a single strand of genetic code, unlike double-stranded DNA. Inside Qiu's biosensor are receptors with the complementary code for this particular virus' RNA; if the virus is present, its RNA will bind with the receptors, locking together like velcro. The biosensor also contains a prism and a laser that work together to verify that this RNA really belongs to SARS-CoV-2 by looking for a specific wavelength of light and temperature.
If the biosensor doesn't detect either, or only registers a match for one and not the other, then it can't produce a positive result. This multi-step authentication process helps make sure that the RNA binding with the receptors isn't a genetically similar coronavirus like SARS-CoV, known for its 2003 outbreak, or MERS-CoV, which caused an epidemic in 2012.
It could also be fitted to detect future novel viruses once their genomes are sequenced.
The dual-feature design of this biosensor "is a really, really neat idea that I have not seen before with other sensor technology," says Erin Bromage, a professor of infection and immunology at the University of Massachusetts Dartmouth; he was not involved in designing or testing Qiu's biosensor. "It makes you feel more secure that when you have a positive, you've really got a positive."
The light and temperature sensors are not in themselves new inventions, but the combination is a first. The part of the device that uses light to detect particles is actually central to Qiu's normal stream of environmental research, and is a versatile tool he's been working with for a long time to detect aerosols in the atmosphere and heavy metals in drinking water.
Bromage says this is a plus. "It's not high-risk in the sense that how they do this is unique, or not validated. They've taken aspects of really proven technology and sort of combined it together."
This new biosensor is still a prototype that will take at least another 12 months to validate in real world scenarios, though. The device is sound from a biological perspective and is sensitive enough to reliably detect SARS-CoV-2 — and to not be tricked by genetically similar viruses like SARS-CoV — but there is still a lot of engineering work that needs to be done in order for it to work outside the lab. Qiu says it's unlikely that the sensor will help minimize the impact of this pandemic, but the RNA receptors, prism, and laser inside the device can be customized to detect other viruses that may crop up in the future.
"If we choose another sequence—like SARS, like MERS, or like normal seasonal flu—we can detect other viruses, or even bacteria," Qiu says. "This device is very flexible."
It could also be fitted to detect future novel viruses once their genomes are sequenced.
The Long-Term Vision: Hospitals and Transit Hubs
The device has been designed to connect with two other systems: an air sampler and a microprocessor because the goal is to make it portable, and able to pick up samples from the air in hospitals or public areas like train stations or airports. A virus could hopefully be detected before it silently spreads and erupts into another global pandemic. In the case of SARS-CoV-2, there has been conflicting research about whether or not the virus is truly airborne (though it can be spread by droplets that briefly move through the air after a cough or sneeze), whereas the highly contagious RNA virus that causes measles can remain in the air for up to two hours.
"They've got a lot on the front end to work out," Bromage says. "They've got to work out how to capture and concentrate a virus, extract the RNA from the virus, and then get it onto the sensor. That's some pretty big hurdles, and may take some engineering that doesn't exist right now. But, if they can do that, then that works out really quite well."
One of the major obstacles in containing the COVID-19 pandemic has been in deploying accurate, quick tools that can be used for early detection of a virus outbreak and for later tracing its spread. That will still be true the next time a novel virus rears its head, and it's why Qiu feels that even if his biosensor can't help just yet, the research is still worth the effort.
It could also be fitted to detect future novel viruses once their genomes are sequenced.
The dual-feature design of this biosensor "is a really, really neat idea that I have not seen before with other sensor technology," says Erin Bromage, a professor of infection and immunology at the University of Massachusetts Dartmouth; he was not involved in designing or testing Qiu's biosensor. "It makes you feel more secure that when you have a positive, you've really got a positive."
The light and temperature sensors are not in themselves new inventions, but the combination is a first. The part of the device that uses light to detect particles is actually central to Qiu's normal stream of environmental research, and is a versatile tool he's been working with for a long time to detect aerosols in the atmosphere and heavy metals in drinking water.
Bromage says this is a plus. "It's not high-risk in the sense that how they do this is unique, or not validated. They've taken aspects of really proven technology and sort of combined it together."
This new biosensor is still a prototype that will take at least another 12 months to validate in real world scenarios, though. The device is sound from a biological perspective and is sensitive enough to reliably detect SARS-CoV-2 — and to not be tricked by genetically similar viruses like SARS-CoV — but there is still a lot of engineering work that needs to be done in order for it to work outside the lab. Qiu says it's unlikely that the sensor will help minimize the impact of this pandemic, but the RNA receptors, prism, and laser inside the device can be customized to detect other viruses that may crop up in the future.
"If we choose another sequence—like SARS, like MERS, or like normal seasonal flu—we can detect other viruses, or even bacteria," Qiu says. "This device is very flexible."
It could also be fitted to detect future novel viruses once their genomes are sequenced.
The Long-Term Vision: Hospitals and Transit Hubs
The device has been designed to connect with two other systems: an air sampler and a microprocessor because the goal is to make it portable, and able to pick up samples from the air in hospitals or public areas like train stations or airports. A virus could hopefully be detected before it silently spreads and erupts into another global pandemic. In the case of SARS-CoV-2, there has been conflicting research about whether or not the virus is truly airborne (though it can be spread by droplets that briefly move through the air after a cough or sneeze), whereas the highly contagious RNA virus that causes measles can remain in the air for up to two hours.
"They've got a lot on the front end to work out," Bromage says. "They've got to work out how to capture and concentrate a virus, extract the RNA from the virus, and then get it onto the sensor. That's some pretty big hurdles, and may take some engineering that doesn't exist right now. But, if they can do that, then that works out really quite well."
One of the major obstacles in containing the COVID-19 pandemic has been in deploying accurate, quick tools that can be used for early detection of a virus outbreak and for later tracing its spread. That will still be true the next time a novel virus rears its head, and it's why Qiu feels that even if his biosensor can't help just yet, the research is still worth the effort.
Spina Bifida Claimed My Son's Mobility. Incredible Breakthroughs May Let Future Kids Run Free.
When our son Henry, now six, was diagnosed with spina bifida at his 20-week ultrasound, my husband and I were in shock. It took us more than a few minutes to understand what the doctor was telling us.
When Henry was diagnosed in 2012, postnatal surgery was still the standard of care – but that was about to change.
Neither of us had any family history of birth defects. Our fifteen-month-old daughter, June, was in perfect health.
But more than that, spina bifida – a malformation of the neural tube that eventually becomes the baby's spine – is woefully complex. The defect, the doctor explained, was essentially a hole in Henry's lower spine from which his spinal nerves were protruding – and because they were exposed to my amniotic fluid, those nerves were already permanently damaged. After birth, doctors could push the nerves back into his body and sew up the hole, but he would likely experience some level of paralysis, bladder and bowel dysfunction, and a buildup of cerebrospinal fluid that would require a surgical implant called a shunt to correct. The damage was devastating – and irreversible.
We returned home with June and spent the next few days cycling between disbelief and total despair. But within a week, the maternal-fetal medicine specialist who diagnosed Henry called us up and gave us the first real optimism we had felt in days: There was a new, experimental surgery for spina bifida that was available in just a handful of hospitals around the country. Rather than waiting until birth to repair the baby's defect, some doctors were now trying out a prenatal repair, operating on the baby via c-section, closing the defect, and then keeping the mother on strict bedrest until it was time for the baby to be delivered, just before term.
This new surgery carried risks, he told us – but if it went well, there was a chance Henry wouldn't need a shunt. And because repairing the defect during my pregnancy meant the spinal nerves were exposed for a shorter amount of time, that meant we'd be preventing nerve damage – and less nerve damage meant that there was a chance he'd be able to walk.
Did we want in? the doctor asked.
Had I known more about spina bifida and the history of its treatment, this surgery would have seemed even more miraculous. Not too long ago, the standard of care for babies born with spina bifida was to simply let them die without medical treatment. In fact, it wasn't until the early 1950s that doctors even attempted to surgically repair the baby's defect at all, instead of opting to let the more severe cases die of meningitis from their open wound. (Babies who had closed spina bifida – a spinal defect covered by skin – sometimes survived past infancy, but rarely into adulthood).
But in the 1960s and 1970s, as more doctors started repairing defects and the shunting technology improved, patients with spina bifida began to survive past infancy. When catheterization was introduced, spina bifida patients who had urinary dysfunction, as is common, were able to preserve their renal function into adulthood, and they began living even longer. Within a few decades, spina bifida was no longer considered a death sentence; people were living fuller, happier lives.
When Henry was diagnosed in 2012, postnatal surgery was still the standard of care – but that was about to change. The first major clinical trial for prenatal surgery and spina bifida, called Management of Myelomeningocele (MOMS) had just concluded, and its objective was to see whether repairing the baby's defect in utero would be beneficial. In the trial, doctors assigned eligible women to undergo prenatal surgery in the second trimester of their pregnancies and then followed up with their children throughout the first 30 months of the child's life.
The results were groundbreaking: Not only did the children in the surgery group perform better on motor skills and cognitive tests than did patients in the control group, only 40 percent of patients ended up needing shunts compared to 80 percent of patients who had postnatal surgery. The results were so overwhelmingly positive that the trial was discontinued early (and is now, happily, the medical standard of care). Our doctor relayed this information to us over the phone, breathless, and left my husband and me to make our decision.
After a few days of consideration, and despite the benefits, my husband and I actually ended up opting for the postnatal surgery instead. Prenatal surgery, although miraculous, would have required extensive travel for us, as well as giving birth in a city thousands of miles from home with no one to watch our toddler while my husband worked and I recovered. But other parents I met online throughout our pregnancy did end up choosing prenatal surgery for their children – and the majority of them now walk with little assistance and only a few require shunting.
Sarah Watts with her husband, daughter June, and son Henry, at a recent family wedding.
Even more amazing to me is that now – seven years after Henry's diagnosis, and not quite a decade since the landmark MOMS trial – the standard of care could be about to change yet again.
Regardless of whether they have postnatal or prenatal surgery, most kids with spina bifida still experience some level of paralysis and rely on wheelchairs and walkers to move around. Now, researchers at UC Davis want to augment the fetal surgery with a stem cell treatment, using human placenta-derived mesenchymal stromal cells (PMSCs) and affixing them to a cellular scaffold on the baby's defect, which not only protects the spinal cord from further damage but actually encourages cellular regeneration as well.
The hope is that this treatment will restore gross motor function after the baby is born – and so far, in animal trials, that's exactly what's happening. Fetal sheep, who were induced with spinal cord injuries in utero, were born with complete motor function after receiving prenatal surgery and PMSCs. In 2017, a pair of bulldogs born with spina bifida received the stem cell treatment a few weeks after birth – and two months after surgery, both dogs could run and play freely, whereas before they had dragged their hind legs on the ground behind them. UC Davis researchers hope to bring this treatment into human clinical trials within the next year.
A century ago, a diagnosis of spina bifida meant almost certain death. Today, most children with spina bifida live into adulthood, albeit with significant disabilities. But thanks to research and innovation, it's entirely possible that within my lifetime – and certainly within Henry's – for the first time in human history, the disabilities associated with spina bifida could be a thing of the past.