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.]
A Futuristic Suicide Machine Aims to End the Stigma of Assisted Dying
Bob Dent ended his life in Perth, Australia in 1996 after multiple surgeries to treat terminal prostate cancer had left him mostly bedridden and in agony.
Although Dent and his immediate family believed it was the right thing to do, the physician who assisted in his suicide – and had pushed for Australia's Northern Territory to legalize the practice the prior year – was deeply shaken.
"You climb in, you are going somewhere, you are leaving, and you are saying goodbye."
"When you get to know someone pretty well, and they set a date to have lunch with you and then have them die at 2 p.m., it's hard to forget," recalls Philip Nitschke.
Nitschke remembers being highly anxious that the device he designed – which released a fatal dose of Nembutal into a patient's bloodstream after they answered a series of questions on a laptop computer to confirm consent – wouldn't work. He was so alarmed by the prospect he recalls his shirt being soaked through with perspiration.
Known as a "Deliverance Machine," it was comprised of the computer, attached by a sheet of wiring to an attache case containing an apparatus for delivering the Nembutal. Although gray, squat and grimly businesslike, it was vastly more sophisticated than Jack Kevorkian's Thanatron – a tangle of tubes, hooks and vials redolent of frontier dentistry.
The Deliverance Machine did work – for Dent and three other patients of Nitschke. However, it remained far from reassuring. "It's not a very comfortable feeling, having a little suitcase and going around to people," he says. "I felt a little like an executioner."
The furor caused in part by Nitschke's work led to Australia's federal government banning physician-assisted suicide in 1997. Nitschke went on to co-found Exit International, one of the foremost assisted suicide advocacy groups, and relocated to the Netherlands.
Exit International recently introduced its most ambitious initiative to date. It's called the Sarco — essentially the Eames lounger of suicide machines. A prototype is currently on display at Venice Design, an adjunct to the Biennale.
Sheathed in a soothing blue coating, the Sarco prototype contains a window and pivots on a pedestal to allow viewing by friends and family. Its close quarters means the opening of a small canister of liquid nitrogen would cause quick and painless asphyxiation. Patrons with second thoughts can press a button to cancel the process.
"The sleek and colorful death-pod looks like it is about to whisk you away to a new territory, or that it just landed after being launched from a Star Trek federation ship," says Charles C. Camosy, associate professor of theological and social ethics at Fordham University in New York City, in an email. Camosy, who has profound misgivings about such a device, was not being complimentary.
Nitschke's goal is to de-medicalize assisted suicide, as liquid nitrogen is readily available. But he suggests employing a futuristic design will also move debate on the issue forward.
"You pick the time...have the party and people come around. You climb in, you are going somewhere, you are leaving, and you are saying goodbye," he says. "It lends itself to a sense of occasion."
Assisted suicide is spreading in developed countries, but very slowly. It was legalized again in Australia just last June, but only in one of its six states. It is legal throughout Canada and in nine U.S. states.
Although the process is outlawed throughout much of Europe, nations permitting it have taken a liberal approach. Euthanasia — where death may be instigated by an assenting physician at a patient's request — is legal in both Belgium and the Netherlands. A terminal illness is not required; a severe disability or a condition causing profound misery may suffice.
Only Switzerland permits suicide with non-physician assistance regardless of an individual's medical condition. David Goodall, a 104-year Australian scientist, traveled 8,000 miles to Basel last year to die with Exit International's assistance. Goodall was in good health for his age and his mind was needle sharp; at a news conference the day before he passed, he thoughtfully answered questions and sang Beethoven's "Ode to Joy" from memory. He simply believed he had lived long enough and wanted to avoid a diminishing quality of life.
"Dying is not a medical process, and if you've decided to do this through rational [decision-making], you should not have to get permission from the medical profession," Nitschke says.
However, the deathstyle aspirations of the Sarco bely the fact obtaining one will not be as simple as swiping a credit card. To create a legal firewall, anyone wishing to obtain a Sarco would have to purchase the plans, print the device themselves — it requires a high-end industrial printer to do so — then assemble it. As with the Deliverance device, the end user must be able to answer computer-generated questions designed by a Swiss psychiatrist to determine if they are making a rational decision. The process concludes with the transmission of a four-digit code to make the Sarco operational.
As with many cutting-edge designs, the path to a working prototype has been nettlesome. Plans for a printed window have been abandoned. How it will be obtained by end users remains unclear. There have also been complications in creating an AI-based algorithm underlying the user questions to reliably determine if the individual is of sound mind.
While Nitschke believes the Sarco will be deployed in Switzerland for the first time sometime next year, it will almost certainly be a subject of immense controversy. The Hastings Center, one of the world's major bioethics organizations and a leader on end-of-life decision-making, flatly refused to comment on the Sarco.
Camosy strongly condemns it. He notes since U.S. life expectancy is actually shortening — with despair-driven suicide playing a role — efforts must be marshaled to mitigate the trend. To him, the Sarco sends an utterly wrong message.
"It is diabolical that we would create machines to make it easier for people to kill themselves."
"Most people who request help in killing themselves don't do so because they are in intense, unbearable pain," he observes. "They do it because the culture in which they live has made them feel like a burden. This culture has told them they only have value if they are able to be 'productive' and 'contribute to society.'" He adds that the large majority of disability activists have been against assisted suicide and euthanasia because it is imperative to their movement that a stigma remain in place.
"It is diabolical that we would create machines to make it easier for people to kill themselves," Camosy concludes. "And anyone with even a single progressive bone in their body should resist this disturbingly morbid profit-making venture with everything they have."
Biologists are Growing Mini-Brains. What If They Become Conscious?
Few images are more uncanny than that of a brain without a body, fully sentient but afloat in sterile isolation. Such specters have spooked the speculatively-minded since the seventeenth century, when René Descartes declared, "I think, therefore I am."
Since August 29, 2019, the prospect of a bodiless but functional brain has begun to seem far less fantastical.
In Meditations on First Philosophy (1641), the French penseur spins a chilling thought experiment: he imagines "having no hands or eyes, or flesh, or blood or senses," but being tricked by a demon into believing he has all these things, and a world to go with them. A disembodied brain itself becomes a demon in the classic young-adult novel A Wrinkle in Time (1962), using mind control to subjugate a planet called Camazotz. In the sci-fi blockbuster The Matrix (1999), most of humanity endures something like Descartes' nightmare—kept in womblike pods by their computer overlords, who fill the captives' brains with a synthetized reality while tapping their metabolic energy as a power source.
Since August 29, 2019, however, the prospect of a bodiless but functional brain has begun to seem far less fantastical. On that date, researchers at the University of California, San Diego published a study in the journal Cell Stem Cell, reporting the detection of brainwaves in cerebral organoids—pea-size "mini-brains" grown in the lab. Such organoids had emitted random electrical impulses in the past, but not these complex, synchronized oscillations. "There are some of my colleagues who say, 'No, these things will never be conscious,'" lead researcher Alysson Muotri, a Brazilian-born biologist, told The New York Times. "Now I'm not so sure."
Alysson Muotri has no qualms about his creations attaining consciousness as a side effect of advancing medical breakthroughs.
(Credit: ZELMAN STUDIOS)
Muotri's findings—and his avowed ambition to push them further—brought new urgency to simmering concerns over the implications of brain organoid research. "The closer we come to his goal," said Christof Koch, chief scientist and president of the Allen Brain Institute in Seattle, "the more likely we will get a brain that is capable of sentience and feeling pain, agony, and distress." At the annual meeting of the Society for Neuroscience, researchers from the Green Neuroscience Laboratory in San Diego called for a partial moratorium, warning that the field was "perilously close to crossing this ethical Rubicon and may have already done so."
Yet experts are far from a consensus on whether brain organoids can become conscious, whether that development would necessarily be dreadful—or even how to tell if it has occurred.
So how worried do we need to be?
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An organoid is a miniaturized, simplified version of an organ, cultured from various types of stem cells. Scientists first learned to make them in the 1980s, and have since turned out mini-hearts, lungs, kidneys, intestines, thyroids, and retinas, among other wonders. These creations can be used for everything from observation of basic biological processes to testing the effects of gene variants, pathogens, or medications. They enable researchers to run experiments that might be less accurate using animal models and unethical or impractical using actual humans. And because organoids are three-dimensional, they can yield insights into structural, developmental, and other matters that an ordinary cell culture could never provide.
In 2006, Japanese biologist Shinya Yamanaka developed a mix of proteins that turned skin cells into "pluripotent" stem cells, which could subsequently be transformed into neurons, muscle cells, or blood cells. (He later won a Nobel Prize for his efforts.) Developmental biologist Madeline Lancaster, then a post-doctoral student at the Institute of Molecular Biotechnology in Vienna, adapted that technique to grow the first brain organoids in 2013. Other researchers soon followed suit, cultivating specialized mini-brains to study disorders ranging from microcephaly to schizophrenia.
Muotri, now a youthful 45-year-old, was among the boldest of these pioneers. His team revealed the process by which Zika virus causes brain damage, and showed that sofosbuvir, a drug previously approved for hepatitis C, protected organoids from infection. He persuaded NASA to fly his organoids to the International Space Station, where they're being used to trace the impact of microgravity on neurodevelopment. He grew brain organoids using cells implanted with Neanderthal genes, and found that their wiring differed from organoids with modern DNA.
Like the latter experiment, Muotri's brainwave breakthrough emerged from a longtime obsession with neuroarchaeology. "I wanted to figure out how the human brain became unique," he told me in a phone interview. "Compared to other species, we are very social. So I looked for conditions where the social brain doesn't function well, and that led me to autism." He began investigating how gene variants associated with severe forms of the disorder affected neural networks in brain organoids.
Tinkering with chemical cocktails, Muotri and his colleagues were able to keep their organoids alive far longer than earlier versions, and to culture more diverse types of brain cells. One team member, Priscilla Negraes, devised a way to measure the mini-brains' electrical activity, by planting them in a tray lined with electrodes. By four months, the researchers found to their astonishment, normal organoids (but not those with an autism gene) emitted bursts of synchronized firing, separated by 20-second silences. At nine months, the organoids were producing up to 300,000 spikes per minute, across a range of frequencies.
He shared his vision for "brain farms," which would grow organoids en masse for drug development or tissue transplants.
When the team used an artificial intelligence system to compare these patterns with EEGs of gestating fetuses, the program found them to be nearly identical at each stage of development. As many scientists noted when the news broke, that didn't mean the organoids were conscious. (Their chaotic bursts bore little resemblance to the orderly rhythms of waking adult brains.) But to some observers, it suggested that they might be approaching the borderline.
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Shortly after Muotri's team published their findings, I attended a conference at UCSD on the ethical questions they raised. The scientist, in jeans and a sky-blue shirt, spoke rhapsodically of brain organoids' potential to solve scientific mysteries and lead to new medical treatments. He showed video of a spider-like robot connected to an organoid through a computer interface. The machine responded to different brainwave patterns by walking or stopping—the first stage, Muotri hoped, in teaching organoids to communicate with the outside world. He described his plans to develop organoids with multiple brain regions, and to hook them up to retinal organoids so they could "see." He shared his vision for "brain farms," which would grow organoids en masse for drug development or tissue transplants.
Muotri holds a spider-like robot that can connect to an organoid through a computer interface.
(Credit: ROLAND LIZARONDO/KPBS)
Yet Muotri also stressed the current limitations of the technology. His organoids contain approximately 2 million neurons, compared to about 200 million in a rat's brain and 86 billion in an adult human's. They consist only of a cerebral cortex, and lack many of a real brain's cell types. Because researchers haven't yet found a way to give organoids blood vessels, moreover, nutrients can't penetrate their inner recesses—a severe constraint on their growth.
Another panelist strongly downplayed the imminence of any Rubicon. Patricia Churchland, an eminent philosopher of neuroscience, cited research suggesting that in mammals, networked connections between the cortex and the thalamus are a minimum requirement for consciousness. "It may be a blessing that you don't have the enabling conditions," she said, "because then you don't have the ethical issues."
Christof Koch, for his part, sounded much less apprehensive than the Times had made him seem. He noted that science lacks a definition of consciousness, beyond an organism's sense of its own existence—"the fact that it feels like something to be you or me." As to the competing notions of how the phenomenon arises, he explained, he prefers one known as Integrated Information Theory, developed by neuroscientist Giulio Tononi. IIT considers consciousness to be a quality intrinsic to systems that reach a certain level of complexity, integration, and causal power (the ability for present actions to determine future states). By that standard, Koch doubted that brain organoids had stepped over the threshold.
One way to tell, he said, might be to use the "zap and zip" test invented by Tononi and his colleague Marcello Massimini in the early 2000s to determine whether patients are conscious in the medical sense. This technique zaps the brain with a pulse of magnetic energy, using a coil held to the scalp. As loops of neural impulses cascade through the cerebral circuitry, an EEG records the firing patterns. In a waking brain, the feedback is highly complex—neither totally predictable nor totally random. In other states, such as sleep, coma, or anesthesia, the rhythms are simpler. Applying an algorithm commonly used for computer "zip" files, the researchers devised a scale that allowed them to correctly diagnose most patients who were minimally conscious or in a vegetative state.
If scientists could find a way to apply "zap and zip" to brain organoids, Koch ventured, it should be possible to rank their degree of awareness on a similar scale. And if it turned out that an organoid was conscious, he added, our ethical calculations should strive to minimize suffering, and avoid it where possible—just as we now do, or ought to, with animal subjects. (Muotri, I later learned, was already contemplating sensors that would signal when organoids were likely in distress.)
During the question-and-answer period, an audience member pressed Churchland about how her views might change if the "enabling conditions" for consciousness in brain organoids were to arise. "My feeling is, we'll answer that when we get there," she said. "That's an unsatisfying answer, but it's because I don't know. Maybe they're totally happy hanging out in a dish! Maybe that's the way to be."
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Muotri himself admits to no qualms about his creations attaining consciousness, whether sooner or later. "I think we should try to replicate the model as close as possible to the human brain," he told me after the conference. "And if that involves having a human consciousness, we should go in that direction." Still, he said, if strong evidence of sentience does arise, "we should pause and discuss among ourselves what to do."
"The field is moving so rapidly, you blink your eyes and another advance has occurred."
Churchland figures it will be at least a decade before anyone reaches the crossroads. "That's partly because the thalamus has a very complex architecture," she said. It might be possible to mimic that architecture in the lab, she added, "but I tend to think it's not going to be a piece of cake."
If anything worries Churchland about brain organoids, in fact, it's that Muotri's visionary claims for their potential could set off a backlash among those who find them unacceptably spooky. "Alysson has done brilliant work, and he's wonderfully charismatic and charming," she said. "But then there's that guy back there who doesn't think it's exciting; he thinks you're the Devil incarnate. You're playing into the hands of people who are going to shut you down."
Koch, however, is more willing to indulge Muotri's dreams. "Ten years ago," he said, "nobody would have believed you can take a stem cell and get an entire retina out of it. It's absolutely frigging amazing. So who am I to say the same thing can't be true for the thalamus or the cortex? The field is moving so rapidly, you blink your eyes and another advance has occurred."
The point, he went on, is not to build a Cartesian thought experiment—or a Matrix-style dystopia—but to vanquish some of humankind's most terrifying foes. "You know, my dad passed away of Parkinson's. I had a twin daughter; she passed away of sudden death syndrome. One of my best friends killed herself; she was schizophrenic. We want to eliminate all these terrible things, and that requires experimentation. We just have to go into it with open eyes."