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.]
New Device Can Detect Peanut Allergens on a Plate in 30 Seconds
People with life-threatening allergies live in constant fear of coming into contact with deadly allergens. Researchers estimate that about 32 million Americans have food allergies, with the most severe being milk, egg, peanut, tree nuts, wheat, soy, fish, and shellfish.
"It is important to understand that just several years ago, this would not have been possible."
Every three minutes, a food allergy reaction sends someone to the emergency room, and 200,000 people in the U.S. require emergency medical care each year for allergic reactions, according to Food Allergy Research and Education.
But what if there was a way you could easily detect if something you were about to eat contains any harmful allergens? Thanks to Israeli scientists, this will soon be the case — at least for peanuts. The team has been working to develop a handheld device called Allerguard, which analyzes the vapors in your meal and can detect allergens in 30 seconds.
Leapsmag spoke with the founder and CTO of Allerguard, Guy Ayal, about the groundbreaking technology, how it works, and when it will be available to purchase.
What prompted you to create this device? Do you have a personal connection with severe food allergies?
Guy Ayal: My eldest daughter's best friend suffers from a severe food allergy, and I experienced first-hand the effect it has on the person and their immediate surroundings. Most notable for me was the effect on the quality of life – the experience of living in constant fear. Everything we do at Allerguard is basically to alleviate some of that fear.
How exactly does the device work?
The device is built on two main pillars. The first is the nano-chemical stage, in which we developed specially attuned nanoparticles that selectively adhere only to the specific molecules that we are looking for. Those molecules, once bound to the nanoparticles, induce a change in their electrical behavior, which is measured and analyzed by the second main pillar -- highly advanced machine learning algorithms, which can surmise which molecules were collected, and thus whether or not peanuts (or in the future, other allergens) were detected.
It is important to understand that just several years ago, this would not have been possible, because both the nano-chemistry, and especially the entire world of machine learning, big data, and what is commonly known as AI only started to exist in the '90s, and reached applicability for handheld devices only in the past few years.
Where are you at in the development process and when will the device be available to consumers?
We have concluded the proof of concept and proof of capability phase, when we demonstrated successful detection of the minimal known clinical amount that may cause the slightest effect in the most severely allergic person – less than 1 mg of peanut (actually it is 0.7 mg). Over the next 18 months will be productization, qualification, and validation of our device, which should be ready to market in the latter half of 2021. The sensor will be available in the U.S., and after a year in Europe and Canada.
The Allerguard was made possible through recent advances in machine learning, big data, and AI.
(Courtesy)
How much will it cost?
Our target price is about $200 for the device, with a disposable SenseCard that will run for at least a full day and cost about $1. That card is for a specific allergen and will work for multiple scans in a day, not just one time.
[At a later stage, the company will have sensors for other allergens like tree nuts, eggs, and milk, and they'll develop a multi-SenseCard that works for a few allergens at once.]
Are there any other devices on the market that do something similar to Allerguard?
No other devices are even close to supplying the level of service that we promise. All known methods for allergen detection rely on sampling of the food, which is a viable solution for homogenous foodstuffs, such as a factory testing their raw ingredients, but not for something as heterogenous as an actual dish – especially not for solid allergens such as peanuts, treenuts, or sesame.
If there is a single peanut in your plate, and you sample from anywhere on that plate which is not where that peanut is located, you will find that your sample is perfectly clean – because it is. But the dish is not. That dish is a death trap for an allergic person. Allerguard is the only suggested solution that could indeed detect that peanut, no matter where in that plate it is hiding.
Anything else readers should know?
Our first-generation product will be for peanuts only. You have to understand, we are still a start-up company, and if we don't concentrate our limited resources to one specific goal, we will not be able to achieve anything at all. Once we are ready to market our first device, the peanut detector, we will be able to start the R&D for the 2nd product, which will be for another allergen – most likely tree nuts and/or sesame, but that will probably be in debate until we actually start it.
[Ed. Note: This is the fourth episode in our Moonshot series, which explores four cutting-edge scientific developments that stand to fundamentally transform our world.]
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.