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.]
Blood Donated from Recovered Coronavirus Patients May Soon Yield a Stopgap Treatment
Antibodies from the blood of recovered patients is being tested as a stopgap treatment.
In October 1918, Lieutenant L.W. McGuire of the United States Navy sent a report to the American Journal of Public Health detailing a promising therapy that had already saved the lives of a number of officers suffering from pneumonia complications due to the Spanish influenza outbreak.
"These antibodies then become essentially drugs."
McGuire described how transfusions of blood from recovered patients – an idea which had first been trialed during a polio epidemic in 1916 – had led to rapid recovery in a series of severe pneumonia cases at a Naval Hospital in Massachusetts. "It is believed the serum has a decided influence in shortening the course of the disease, and lowering the mortality," he wrote.
Now more than a century on, this treatment – long forgotten in the western world - is once again coming to the fore during the current COVID-19 pandemic. With fatalities continuing to rise, and no vaccine expected for many months, experts are urging medical centers across the U.S. and Europe to initiate collaborations between critical care and transfusion services to offer this as an emergency treatment for those who need it most.
As of March 20, there are more than 90,000 individuals globally who have recovered from the disease. Some scientists believe that the blood of many of these people contains high levels of neutralizing antibodies that can kill the virus.
"These antibodies then become essentially drugs," said Arturo Casadevall, professor of Molecular Microbiology & Immunology at John Hopkins Bloomberg School of Public Health, who is currently co-ordinating a clinical trial of convalescent serum for COVID-19 involving 20 institutions across the US.
"We're talking about preparing a therapy right out of the serum of those that have recovered. It could also be used in patients who are already sick, but have not progressed to respiratory failure, to treat them before they enter intensive care units. That will provide a lot of support because there's a limited number of respirators and resources."
The first conclusive data on how the blood of recovered patients can help tackle COVID-19 is set to come out of China, where it was also used as an emergency treatment during the SARS and MERS outbreaks. On February 9, a severely ill patient in Wuhan was treated with convalescent serum and since then, hospitals across China have used the therapy on a total of 245 patients, with 91 reportedly showing an improvement in symptoms.
In China alone, more than 58,000 patients have now recovered from COVID-19. Casadevall said that last week the country shipped 90 tons of serum and plasma from these patients to Italy – the center of the pandemic in Europe – for emergency use.
Some of the first people to be treated are likely to be doctors and nurses in hospitals who are most at risk of exposure.
A current challenge, however, is that the blood donation from the recovered patients must be precisely timed in order to maximize the number of antibodies a future patient receives. Doctors in China say that obtaining the necessary blood samples at the right time is one of the major barriers to applying the treatment on a larger scale.
"It's difficult to get the donations," said Dr. Yuan Shi of Chongqing Medical University. "When patients have recovered from the disease, we would like to collect their blood two to four weeks afterwards. We try our best to call back the patients, but it's sometimes difficult to get them to come back within that time period."
Because of such hurdles, Japan's largest drugmaker, Takeda Pharmaceuticals, is now working to turn neutralizing antibodies from recovered COVID-19 patients into a standardized drug product. They hope to launch a clinical trial for this in the next few months.
In the U.S., Casadevall hopes blood transfusions from recovered patients can become clinically available as a therapy within the next four weeks, once regulatory approval has been received. Some of the first people to be treated are likely to be doctors and nurses in hospitals who are most at risk of exposure, to provide a protective boost in their immunity.
"A lot of healthcare workers in the U.S. have already been asked to quarantine, and you can imagine what effect that's going to have on the healthcare system," he said. "It can't take large numbers of people staying home; there's not the capacity."
But not all medical experts are convinced it's the way to go, especially when it comes to the most severe cases of COVID-19. "There's no knowing whether that treatment would be useful or not," warned Dr. Andrew Freedman, head of Cardiff University's School of Medicine in the U.K.
"There are going to be better things available in a few months, but we are facing, 'What do you do now?'"
However, Casadevall says that the treatment is not envisioned as a panacea to treating coronavirus, but simply a temporary measure which could give doctors some options until stronger options such as vaccines or new drugs are available.
"This is a stopgap option," he said. "There are going to be better things available in a few months, but we are facing, 'What do you do now?' The only thing we can offer severely ill people at the moment is respiratory support and oxygen, and we don't have anything to prevent those exposed from going on and getting ill."
Social distancing is a critical part of the strategy to defeat the novel coronavirus.
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.