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.]
A new video game exposes players to the deceptive tactics that are used to spread misinformation online, in an attempt to reduce people's susceptibility to fake news.
There's no shortage of fake news going around the internet these days, but how do we become more aware as consumers of what's real and what's not?
"We are hoping to create what you might call a general 'vaccine' against fake news, rather than trying to counter each specific conspiracy or falsehood."
Researchers at the University of Cambridge may have answered just that by developing an online game designed to expose and educate participants to the tactics used by those spreading false information.
"We wanted to see if we could preemptively debunk, or 'pre-bunk', fake news by exposing people to a weak dose of the methods used to create and spread disinformation, so they have a better understanding of how they might be deceived," Dr Sander van der Linden, Director of the Cambridge Social Decision-Making Lab, said in a statement.
"This is a version of what psychologists call 'inoculation theory', with our game working like a psychological vaccination."
In February 2018, van der Linden and his coauthor, Jon Roozenbeek, helped launch the browser game, "Bad News," where players take on the role of "Disinformation and Fake News Tycoon."
They can manipulate news and social media within the game by several different methods, including deploying twitter-bots, photo-shopping evidence, creating fake accounts, and inciting conspiracy theories with the goal of attracting followers and maintaining a "credibility score" for persuasiveness.
In order to gauge the game's effectiveness, players were asked to rate the reliability of a number of real and fake news headlines and tweets both before and after playing. The data from 15,000 players was evaluated, with the results published June 25 in the journal Palgrave Communications.
The results concluded that "the perceived reliability of fake news before playing the game had reduced by an average of 21% after completing it. Yet the game made no difference to how users ranked real news."
Just 15 minutes of playing the game can have a moderate effect on people, which could play a major role on a larger scale.
Additionally, participants who "registered as most susceptible to fake news headlines at the outset benefited most from the 'inoculation,'" according to the study.
Just 15 minutes of playing the game can have a moderate effect on people, which could play a major role on a larger scale when it comes to "building a societal resistance to fake news," according to Dr. van der Linden.
"Research suggests that fake news spreads faster and deeper than the truth, so combating disinformation after-the-fact can be like fighting a losing battle," he said.
"We are hoping to create what you might call a general 'vaccine' against fake news, rather than trying to counter each specific conspiracy or falsehood," Roozenbeek added.
Van der Linden and Roozenbeek's work is an early example of the potential methods to protect people against deception by training them to be more attuned to the methods used to distribute fake news.
"I hope that the positive results give further credence to the new science of prebunking rather than only thinking about traditional debunking. On a larger level, I also hope the game and results inspire a new kind of behavioral science research where we actively engage with people and apply insights from psychological science in the public interest," van der Linden told leapsmag.
"I like the idea that the end result of a scientific theory is a real-world partnership and practical tool that organizations and people can use to guard themselves against online manipulation techniques in a novel and hopefully fun and engaging manner."
Ready to be "inoculated" against fake news? Then play the game for yourself.
An astronaut peers through a portal in outer space.
What if people could just survive on sunlight like plants?
The admittedly outlandish question occurred to me after reading about how climate change will exacerbate drought, flooding, and worldwide food shortages. Many of these problems could be eliminated if human photosynthesis were possible. Had anyone ever tried it?
Extreme space travel exists at an ethically unique spot that makes human experimentation much more palatable.
I emailed Sidney Pierce, professor emeritus in the Department of Integrative Biology at the University of South Florida, who studies a type of sea slug, Elysia chlorotica, that eats photosynthetic algae, incorporating the algae's key cell structure into itself. It's still a mystery how exactly a slug can operate the part of the cell that converts sunlight into energy, which requires proteins made by genes to function, but the upshot is that the slugs can (and do) live on sunlight in-between feedings.
Pierce says he gets questions about human photosynthesis a couple of times a year, but it almost certainly wouldn't be worth it to try to develop the process in a human. "A high-metabolic rate, large animal like a human could probably not survive on photosynthesis," he wrote to me in an email. "The main reason is a lack of surface area. They would either have to grow leaves or pull a trailer covered with them."
In short: Plants have already exploited the best tricks for subsisting on photosynthesis, and unless we want to look and act like plants, we won't have much success ourselves. Not that it stopped Pierce from trying to develop human photosynthesis technology anyway: "I even tried to sell it to the Navy back in the day," he told me. "Imagine photosynthetic SEALS."
It turns out, however, that while no one is actively trying to create photosynthetic humans, scientists are considering the ways humans might need to change to adapt to future environments, either here on the rapidly changing Earth or on another planet. Rice University biologist Scott Solomon has written an entire book, Future Humans, in which he explores the environmental pressures that are likely to influence human evolution from this point forward. On Earth, Solomon says, infectious disease will remain a major driver of change. As for Mars, the big two are lower gravity and radiation, the latter of which bombards the Martian surface constantly because the planet has no magnetosphere.
Although he considers this example "pretty out there," Solomon says one possible solution to Mars' magnetic assault could leave humans not photosynthetic green, but orange, thanks to pigments called carotenoids that are responsible for the bright hues of pumpkins and carrots.
"Carotenoids protect against radiation," he says. "Usually only plants and microbes can produce carotenoids, but there's at least one kind of insect, a particular type of aphid, that somehow acquired the gene for making carotenoids from a fungus. We don't exactly know how that happened, but now they're orange... I view that as an example of, hey, maybe humans on Mars will evolve new kinds of pigmentation that will protect us from the radiation there."
We could wait for an orange human-producing genetic variation to occur naturally, or with new gene editing techniques such as CRISPR-Cas9, we could just directly give astronauts genetic advantages such as carotenoid-producing skin. This may not be as far-off as it sounds: Extreme space travel exists at an ethically unique spot that makes human experimentation much more palatable. If an astronaut already plans to subject herself to the enormous experiment of traveling to, and maybe living out her days on, a dangerous and faraway planet, do we have any obligation to provide all the protection we can?
Probably the most vocal person trying to figure out what genetic protections might help astronauts is Cornell geneticist Chris Mason. His lab has outlined a 10-phase, 500-year plan for human survival, starting with the comparatively modest goal of establishing which human genes are not amenable to change and should be marked with a "Do not disturb" sign.
To be clear, Mason is not actually modifying human beings. Instead, his lab has studied genes in radiation-resistant bacteria, such as the Deinococcus genus. They've expressed proteins called DSUP from tardigrades, tiny water bears that can survive in space, in human cells. They've looked into p53, a gene that is overexpressed in elephants and seems to protect them from cancer. They also developed a protocol to work on the NASA twin study comparing astronauts Scott Kelly, who spent a year aboard the International Space Station, and his brother Mark, who did not, to find out what effects space tends to have on genes in the first place.
In a talk he gave in December, Mason reported that 8.7 percent of Scott Kelly's genes—mostly those associated with immune function, DNA repair, and bone formation—did not return to normal after the astronaut had been home for six months. "Some of these space genes, we could engineer them, activate them, have them be hyperactive when you go to space," he said in that same talk. "When we think about having the hubris to go to a faraway planet...it seems like an almost impossible idea….but I really like people and I want us to survive for a long time, and this is the first step on the stairwell to survive out of the solar system."
What is the most important ability we could give our future selves through science?
There are others performing studies to figure out what capabilities we might bestow on the future-proof superhuman, but none of them are quite as extreme as photosynthesis (although all of them are useful). At Harvard, geneticist George Church wants to engineer cells to be resistant to viruses, such as the common cold and HIV. At Columbia, synthetic biologist Harris Wang is addressing self-sufficient humans more directly—trying to spur kidney cells to produce amino acids that are normally only available from diet.
But perhaps Future Humans author Scott Solomon has the most radical idea. I asked him a version of the classic What would be your superhero power? question: What does he see as the most important ability we could give our future selves through science?
"The empathy gene," he said. "The ability to put yourself in someone else's shoes and see the world as they see it. I think it would solve a lot of our problems."