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.]
Studies of twins have played an important role in determining that genetic differences play a role in the development of differences in behavior.
[Editor's Note: This essay is in response to our current Big Question, which we posed to experts with different perspectives: "How should DNA tests for intelligence be used, if at all, by parents and educators?"]
Imagine a world in which pregnant women could go to the doctor and obtain a simple inexpensive genetic test of their unborn child that would allow them to predict how tall he or she would eventually be. The test might also tell them the child's risk for high blood pressure or heart disease.
Can we use DNA not to understand, but to predict who is going to be intelligent or extraverted or mentally ill?
Even more remarkable -- and more dangerous -- the test might predict how intelligent the child would be, or how far he or she could be expected to go in school. Or heading further out, it might predict whether he or she will be an alcoholic or a teetotaler, or straight or gay, or… you get the idea. Is this really possible? If it is, would it be a good idea? Answering these questions requires some background in a scientific field called behavior genetics.
Differences in human behavior -- intelligence, personality, mental illness, pretty much everything -- are related to genetic differences among people. Scientists have known this for 150 years, ever since Darwin's half-cousin Francis Galton first applied Shakespeare's phrase, "Nature and Nurture" to the scientific investigation of human differences. We knew about the heritability of behavior before Mendel's laws of genetics had been re-discovered at the end of the last century, and long before the structure of DNA was discovered in the 1950s. How could discoveries about genetics be made before a science of genetics even existed?
The answer is that scientists developed clever research designs that allowed them to make inferences about genetics in the absence of biological knowledge about DNA. The best-known is the twin study: identical twins are essentially clones, sharing 100 percent of their DNA, while fraternal twins are essentially siblings, sharing half. To the extent that identical twins are more similar for some trait than fraternal twins, one can infer that heredity is playing a role. Adoption studies are even more straightforward. Is the personality of an adopted child more like the biological parents she has never seen, or the adoptive parents who raised her?
Twin and adoption studies played an important role in establishing beyond any reasonable doubt that genetic differences play a role in the development of differences in behavior, but they told us very little about how the genetics of behavior actually worked. When the human genome was finally sequenced in the early 2000s, and it became easier and cheaper to obtain actual DNA from large samples of people, scientists anticipated that we would soon find the genes for intelligence, mental illness, and all the other behaviors that were known to be "heritable" in a general way.
But to everyone's amazement, the genes weren't there. It turned out that there are thousands of genes related to any given behavior, so many that they can't be counted, and each one of them has such a tiny effect that it can't be tied to meaningful biological processes. The whole scientific enterprise of understanding the genetics of behavior seemed ready to collapse, until it was rescued -- sort of -- by a new method called polygenic scores, PGS for short. Polygenic scores abandon the old task of finding the genes for complex human behavior, replacing it with black-box prediction: can we use DNA not to understand, but to predict who is going to be intelligent or extraverted or mentally ill?
Prediction from observing parents works better, and is far easier and cheaper, than anything we can do with DNA.
PGS are the shiny new toy of human genetics. From a technological standpoint they are truly amazing, and they are useful for some scientific applications that don't involve making decisions about individual people. We can obtain DNA from thousands of people, estimate the tiny relationships between individual bits of DNA and any outcome we want — height or weight or cardiac disease or IQ — and then add all those tiny effects together into a single bell-shaped score that can predict the outcome of interest. In theory, we could do this from the moment of conception.
Polygenic scores for height already work pretty well. Physicians are debating whether the PGS for heart disease are robust enough to be used in the clinic. For some behavioral traits-- the most data exist for educational attainment -- they work well enough to be scientifically interesting, if not practically useful. For traits like personality or sexual orientation, the prediction is statistically significant but nowhere close to practically meaningful. No one knows how much better any of these predictions are likely to get.
Without a doubt, PGS are an amazing feat of genomic technology, but the task they accomplish is something scientists have been able to do for a long time, and in fact it is something that our grandparents could have done pretty well. PGS are basically a new way to predict a trait in an individual by using the same trait in the individual's parents — a way of observing that the acorn doesn't fall far from the tree.
The children of tall people tend to be tall. Children of excellent athletes are athletic; children of smart people are smart; children of people with heart disease are at risk, themselves. Not every time, of course, but that is how imperfect prediction works: children of tall parents vary in their height like anyone else, but on average they are taller than the rest of us. Prediction from observing parents works better, and is far easier and cheaper, than anything we can do with DNA.
But wait a minute. Prediction from parents isn't strictly genetic. Smart parents not only pass on their genes to their kids, but they also raise them. Smart families are privileged in thousands of ways — they make more money and can send their kids to better schools. The same is true for PGS.
The ability of a genetic score to predict educational attainment depends not only on examining the relationship between certain genes and how far people go in school, but also on every personal and social characteristic that helps or hinders education: wealth, status, discrimination, you name it. The bottom line is that for any kind of prediction of human behavior, separation of genetic from environmental prediction is very difficult; ultimately it isn't possible.
Still, experts are already discussing how to use PGS to make predictions for children, and even for embryos.
This is a reminder that we really have no idea why either parents or PGS predict as well or as poorly as they do. It is easy to imagine that a PGS for educational attainment works because it is summarizing genes that code for efficient neurological development, bigger brains, and swifter problem solving, but we really don't know that. PGS could work because they are associated with being rich, or being motivated, or having light skin. It's the same for predicting from parents. We just don't know.
Still, experts are already discussing how to use PGS to make predictions for children, and even for embryos.
For example, maybe couples could fertilize multiple embryos in vitro, test their DNA, and select the one with the "best" PGS on some trait. This would be a bad idea for a lot of reasons. Such scores aren't effective enough to be very useful to parents, and to the extent they are effective, it is very difficult to know what other traits might be selected for when parents try to prioritize intelligence or attractiveness. People will no doubt try it anyway, and as a matter of reproductive freedom I can't think of any way to stop them. Fortunately, the practice probably won't have any great impact one way or another.
That brings us to the ethics of PGS, particularly in the schools. Imagine that when a child enrolls in a public school, an IQ test is given to her biological parents. Children with low-IQ parents are statistically more likely to have low IQs themselves, so they could be assigned to less demanding classrooms or vocational programs. Hopefully we agree that this would be unethical, but let's think through why.
First of all, it would be unethical because we don't know why the parents have low IQs, or why their IQs predict their children's. The parents could be from a marginalized ethnic group, recognizable by their skin color and passed on genetically to their children, so discriminating based on a parent's IQ would just be a proxy for discriminating based on skin color. Such a system would be no more than a social scientific gloss on an old-fashioned program for perpetuating economic and cognitive privilege via the educational system.
People deserve to be judged on the basis of their own behavior, not a genetic test.
Assigning children to classrooms based on genetic testing would be no different, although it would have the slight ethical advantage of being less effective. The PGS for educational attainment could reflect brain-efficiency, but it could also depend on skin color, or economic advantage, or personality, or literally anything that is related in any way to economic success. Privileging kids with higher genetic scores would be no different than privileging children with smart parents. If schools really believe that a psychological trait like IQ is important for school placement, the sensible thing is to administer the children an actual IQ test – not a genetic test.
IQ testing has its own issues, of course, but at least it involves making decisions about individuals based on their own observable characteristics, rather than on characteristics of their parents or their genome. If decisions must be made, if resources must be apportioned, people deserve to be judged on the basis of their own behavior, the content of their character. Since it can't be denied that people differ in all sorts of relevant ways, this is what it means for all people to be created equal.
[Editor's Note: Read another perspective in the series here.]
A child prodigy considers a math equation.
[Editor's Note: This essay is in response to our current Big Question, which we posed to experts with different perspectives: "How should DNA tests for intelligence be used, if at all, by parents and educators?"]
It's 2019. Prenatal genetic tests are being used to help parents select from healthy and diseased eggs. Genetic risk profiles are being created for a range of common diseases. And embryonic gene editing has moved into the clinic. The science community is nearly unanimous on the question of whether we should be consulting our genomes as early as possible to create healthy offspring. If you can predict it, let's prevent it, and the sooner, the better.
There are big issues with IQ genetics that should be considered before parents and educators adopt DNA IQ predictions.
When it comes to care of our babies, kids, and future generations, we are doing things today that we never even dreamed would be possible. But one area that remains murky is the long fraught question of IQ, and whether to use DNA science to tell us something about it. There are big issues with IQ genetics that should be considered before parents and educators adopt DNA IQ predictions.
IQ tests have been around for over a century. They've been used by doctors, teachers, government officials, and a whole host of institutions as a proxy for intelligence, especially in youth. At times in history, test results have been used to determine whether to allow a person to procreate, remain a part of society, or merely stay alive. These abuses seem to be a distant part of our past, and IQ tests have since garnered their fair share of controversy for exhibiting racial and cultural biases. But they continue to be used across society. Indeed, much of the literature aimed at expecting parents justifies its recommendations (more omegas, less formula, etc.) based on promises of raising a baby's IQ.
This is the power of IQ testing sans DNA science. Until recently, the two were separate entities, with IQ tests indicating a coefficient created from individual responses to written questions and genetic tests indicating some disease susceptibility based on a sequence of one's DNA. Yet in recent years, scientists have begun to unlock the secrets of inherited aspects of intelligence with genetic analyses that scan millions of points of variation in DNA. Both bench scientists and direct-to-consumer companies have used these new technologies to find variants associated with exceptional IQ scores. There are a number of tests on the open market that parents and educators can use at will. These tests purport to reveal whether a child is inherently predisposed to be intelligent, and some suggest ways to track them for success.
I started looking into these tests when I was doing research for my book, "Social by Nature: The Promise and Peril of Sociogenomics." This book investigated the new genetic science of social phenomena, like educational attainment and political persuasion, investment strategies, and health habits. I learned that, while many of the scientists doing much of the basic research into these things cautioned that the effects of genetic factors were quite small, most saw testing as one data point among many that could help to somehow level the playing field for young people. The rationale went that in certain circumstances, some needed help more than others. Why not put our collective resources together to help them?
Good nutrition, support at home, and access to healthcare and education make a huge difference in how people do.
Some experts believed so strongly in the power of DNA behavioral prediction that they argued it would be unfair not to use predictors to determine a kid's future, prevent negative outcomes, and promote the possibility for positive ones. The educators out in the wider world that I spoke with agreed. With careful attention, they thought sociogenomic tests could help young people get the push they needed when they possessed DNA sequences that weren't working in their favor. Officials working with troubled youth told me they hoped DNA data could be marshaled early enough that kids would thrive at home and in school, thereby avoiding ending up in their care. While my conversations with folks centered around sociogenomic data in general, genetic IQ prediction was completely entangled in it all.
I present these prevailing views to demonstrate both the widespread appeal of genetic predictors as well as the well-meaning intentions of those in favor of using them. It's a truly progressive notion to help those who need help the most. But we must question whether genetic predictors are data points worth looking at.
When we examine the way DNA IQ predictors are generated, we see scientists grouping people with similar IQ test results and academic achievements, and then searching for the DNA those people have in common. But there's a lot more to scores and achievements than meets the eye. Good nutrition, support at home, and access to healthcare and education make a huge difference in how people do. Therefore, the first problem with using DNA IQ predictors is that the data points themselves may be compromised by numerous inaccuracies.
We must then ask ourselves where the deep, enduring inequities in our society are really coming from. A deluge of research has shown that poor life outcomes are a product of social inequalities, like toxic living conditions, underfunded schools, and unhealthy jobs. A wealth of research has also shown that race, gender, sexuality, and class heavily influence life outcomes in numerous ways. Parents and caregivers feed, talk, and play differently with babies of different genders. Teachers treat girls and boys, as well as members of different racial and ethnic backgrounds, differently to the point where they do better and worse in different subject areas.
Healthcare providers consistently racially profile, using diagnostics and prescribing therapies differently for the same health conditions. Access to good schools and healthcare are strongly mitigated by one's race and socioeconomic status. But even youth from privileged backgrounds suffer worse health and life outcomes when they identify or are identified as queer. These are but a few examples of the ways in which social inequities affect our chances in life. Therefore, the second problem with using DNA IQ predictors is that it obscures these very real, and frankly lethal, determinants. Instead of attending to the social environment, parents and educators take inborn genetics as the reason for a child's successes or failures.
It is time that we shift our priorities from seeking genetic causes to fixing the social causes we know to be real.
The other problem with using DNA IQ predictors is that research into the weightiness of DNA evidence has shown time and again that people take DNA evidence more seriously than they do other kinds of evidence. So it's not realistic to say that we can just consider IQ genetics as merely one tiny data point. People will always give more weight to DNA evidence than it deserves. And given its proven negligible effect, it would be irresponsible to do so.
It is time that we shift our priorities from seeking genetic causes to fixing the social causes we know to be real. Parents and educators need to be wary of solutions aimed at them and their individual children.
[Editor's Note: Read another perspective in the series here.]