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.]
Dana Lewis, pictured in Mount Vernon in 2017, worked with her engineer husband to design an artificial pancreas system to manage her type 1 diabetes.
For years, a continuous glucose monitor would beep at night if Dana Lewis' blood sugar measured too high or too low. At age 14, she was diagnosed with type 1 diabetes, an autoimmune disease that destroys insulin-producing cells in the pancreas.
The FDA just issued its first warning to the DIY diabetic community, after one patient suffered an accidental insulin overdose.
But being a sound sleeper, the Seattle-based independent researcher, now 30, feared not waking up. That concerned her most when she would run, after which her glucose dropped overnight. Now, she rarely needs a rousing reminder to alert her to out-of-range blood glucose levels.
That's because Lewis and her husband, Scott Leibrand, a network engineer, developed an artificial pancreas system—an algorithm that calculates adjustments to insulin delivery based on data from the continuous glucose monitor and her insulin pump. When the monitor gives a reading, she no longer needs to press a button. The algorithm tells the pump how much insulin to release while she's sleeping.
"Most of the time, it's preventing the frequent occurrences of high or low blood sugars automatically," Lewis explains.
Like other do-it-yourself device innovations, home-designed artificial pancreas systems are not approved by the Food and Drug Administration, so individual users assume any associated risks. Experts recommend that patients consult their doctor before adopting a new self-monitoring approach and to keep the clinician apprised of their progress.
DIY closed-loop systems can be uniquely challenging, according to the FDA. Patients may not fully comprehend how the devices are intended to work or they may fail to recognize the limitations. The systems have not been evaluated under quality control measures and pose risks of inappropriate dosing from the automated algorithm or potential incompatibility with a patient's other medications, says Stephanie Caccomo, an FDA spokeswoman.
Earlier this month, in fact, the FDA issued its first warning to the DIY diabetic community, which includes thousands of users, after one patient suffered an accidental insulin overdose.
Patients who built their own systems from scratch may be more well-versed in the operations, while those who are implementing unapproved designs created by others are less likely to be familiar with their intricacies, she says.
"Malfunctions or misuse of automated-insulin delivery systems can lead to acute complications of hypo- and hyperglycemia that may result in serious injury or death," Caccomo cautions. "FDA provides independent review of complex systems to assess the safety of these nontransparent devices, so that users do not have to be software/hardware designers to get the medical devices they need."
Only one hybrid closed-loop technology—the MiniMed 670G System from Minneapolis-based Medtronic—has been FDA-approved for type 1 use since September 2016. The term "hybrid" indicates that the system is not a fully automatic closed loop; it still requires minimal input from patients, including the need to enter mealtime carbohydrates, manage insulin dosage recommendations, and periodically calibrate the sensor.
Meanwhile, some tech-savvy people with type 1 diabetes have opted to design their own systems. About one-third of the DIY diabetes loopers are children whose parents have built them a closed system, according to Lewis' website.
Lewis began developing her system in 2014, well before Medtronic's device hit the market. "The choice to wait is not a luxury," she says, noting that "diabetes is inherently dangerous," whether an individual relies on a device to inject insulin or administers it with a syringe.
Hybrid closed-loop insulin delivery improves glucose control while decreasing the risk of low blood sugar in patients of various ages with less than optimally controlled type 1 diabetes, according to a study published in The Lancet last October. The multi-center randomized trial, conducted in the United Kingdom and the United States, spanned 12 weeks and included adults, adolescents, and children aged 6 years and older.
"We have compelling data attesting to the benefits of closed-loop systems," says Daniel Finan, research director at JDRF (formerly the Juvenile Diabetes Research Foundation) in New York, a global organization funding the study.
Medtronic's system costs between $6,000 and $9,000. However, end-user pricing varies based on an individual's health plan. It is covered by most insurers, according to the device manufacturer.
To give users more choice, in 2017 JDRF launched the Open Protocol Automated Insulin Delivery Systems initiative to collaborate with the FDA and experts in the do-it-yourself arena. The organization hopes to "forge a new regulatory paradigm," Finan says.
As diabetes management becomes more user-controlled, there is a need for better coordination. "We've had insulin pumps for a very long time, but having sensors that can detect blood sugars in real time is still a very new phenomenon," says Leslie Lam, interim chief in the division of pediatric endocrinology and diabetes at The Children's Hospital at Montefiore in the Bronx, N.Y.
"There's a lag in the integration of this technology," he adds. Innovators are indeed working to bring new products to market, "but on the consumer side, people want that to be here now instead of a year or two later."
The devices aren't foolproof, and mishaps can occur even with very accurate systems. For this reason, there is some reluctance to advocate for universal use in children with type 1 diabetes. Supervision by a parent, school nurse, and sometimes a coach would be a prudent precaution, Lam says.
People engage in "this work because they are either curious about it themselves or not getting the care they need from the health care system, or both."
Remaining aware of blood sugar levels and having a backup plan are essential. "People still need to know how to give injections the old-school way," he says.
To ensure readings are correct on Medtronic's device, users should check their blood sugar with traditional finger pricking at least five or six times per day—before every meal and whenever directed by the system, notes Elena Toschi, an endocrinologist and director of the Young Adult Clinic at Joslin Diabetes Center, an affiliate of Harvard Medical School.
"There can be pump failure and cross-talking failure," she cautions, urging patients not to stop being vigilant because they are using an automated device. "This is still something that can happen; it doesn't eliminate that."
While do-it-yourself devices help promote autonomy and offer convenience, the lack of clinical trial data makes it difficult for clinicians and patients to assess risks versus benefits, says Lisa Eckenwiler, an associate professor in the departments of philosophy and health administration and policy at George Mason University in Fairfax, Va.
"What are the responsibilities of physicians in that context to advise patients?" she questions. Some clinicians foresee the possibility that "down the road, if things go awry" with disease management, that could place them "in a moral quandary."
Whether it's controlling diabetes, obesity, heart disease or asthma, emerging technologies are having a major influence on individuals' abilities to stay on top of their health, says Camille Nebeker, an assistant professor in the School of Medicine at the University of California, San Diego, and founder and director of its Research Center for Optimal Data Ethics.
People engage in "this work because they are either curious about it themselves or not getting the care they need from the health care system, or both," she says. In "citizen science communities," they may partner in participant-led research while gaining access to scientific and technical expertise. Others "may go it alone in solo self-tracking studies or developing do-it-yourself technologies," which raises concerns about whether they are carefully considering potential risks and weighing them against possible benefits.
Dana Lewis admits that "using do-it-yourself systems might not be for everyone. But the advances made in the do-it-yourself community show what's possible for future commercial developments, and give a lot of hope for improved quality of life for those of us living with type 1 diabetes."
The Grim Reaper Can Now Compost Your Body
An artist's rendering of a future Recompose facility in Washington state, with reusable modular vessels that convert human remains to soil.
Ultra-green Seattle isn't just getting serious about living eco-friendly, but dying that way, too. As of this week, Washington is officially the first state to allow citizens to compost their own dead bodies.
Their bodies, including bones, were converted into clean, odorless soil free of harmful pathogens.
The Lowdown
Keep in mind this doesn't mean dumping your relative in a nearby river. Scientists and organizations have ways to help Mother Nature process the remains. For instance, the late actor Luke Perry reportedly was buried in a mushroom suit. Perry's garment is completely biodegradable and the attached microorganisms help the decomposition process cleanly and efficiently.
A biodegradable burial requires only a fraction of the energy used for cremation and can save a metric ton of CO2. The body decomposes in about a month. Besides a mushroom suit, another option coming down the pike in Washington state is to have your body converted directly into soil in a special facility.
A pilot study last summer by a public benefit corporation called Recompose signed up six terminally ill people who donated their remains for such research. Their bodies, including bones, were converted into clean, odorless soil free of harmful pathogens. That soil—about a cubic yard per person--could then be returned after 30 days to the subjects' families.
Green burials open the door to creative memorials. A tree or garden could be planted with your soil. This method provides a climate-friendly alternative to traditional funerals, circumventing toxic embalming fluid, expensive casket materials and other ecological overhead. The fertile soil could also be given to conservationist organizations.
Next Up
The new legislation in Washington will take effect May 1, 2020. The Pacific Northwest state has one of the highest cremation rates in the nation at 78 percent, only second to Nevada. Rising climate change and increased interest in death management will only speed this discussion to the forefront in other states.
A biodegradable burial requires only a fraction of the energy used for cremation and can save a metric ton of CO2.
It's also worth noting Perry wasn't buried in Washington State, but in Tennessee. It is unknown where exactly he was laid to rest, nor if it was done under a legal precedent or special exception.
According to the Green Burial Council, each state varies on how and where you can bury someone. Home burials are usually legal, but to do so requires establishing an official cemetery area on the property. How someone is buried has even more dynamic legislation. There will be new discussions about how neighbors contend with nearby decomposing bodies, legal limitations to private burial techniques, and other issues never addressed before in modern mainstream America.
Open Questions
It's unclear if green burials will be commonplace for those with less financial means or access. Mushroom suits average a couple thousand dollars, making them more expensive than a low-end casket. There are also the less obvious expenses, including designating the place of burial, and getting proper burial support and guidance. In short, you likely won't go to the local funeral home and be taken care of properly. It is still experimental.
As for "natural organic reduction" (converting human remains to soil in reusable modular vessels), Recompose is still figuring out its pricing for Washington residents, but expects the service to cost more than cremation and less than a conventional burial.
For now, environmentally sustainable death care may be comparable to vegetarianism in the 1970s or solar paneling in the 1980s: A discussion among urbanites and upwardly-mobile financial classes, but not yet an accessible option for the average American. It's not a coincidence that the new Washington law received support in Seattle, one of the top 10 wealthiest cities in America. A similar push may take off in less affluent areas if ecological concerns drive a demand for affordable green burial options.
Until then, your neighborhood mortician still has the death business on lock.