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 religious family attends church.
The Internet has made it easier than ever to misguide people. The anti-vaxx movement, climate change denial, protests against stem cell research, and other movements like these are rooted in the spread of misinformation and a distrust of science.
"I had been taught intelligent design and young-earth creationism instead of evolution, geology, and biology."
Science illiteracy is pervasive in the communities responsible for these movements. For the mainstream, the challenge lies not in sharing the facts, but in combating the spread of misinformation and facilitating an open dialogue between experts and nonexperts.
I grew up in a household that was deeply skeptical of science and medicine. My parents are evangelical Christians who believe the word of the Bible is law. To protect my four siblings and me from secular influence, they homeschooled some of us and put the others in private Christian schools. When my oldest brother left for a Christian college and the tuition began to add up, I was placed in a public charter school to offset the costs.
There, I became acutely aware of my ignorant upbringing. I had been taught intelligent design and young-earth creationism instead of evolution, geology, and biology. My mother skipped over world religions, and much of my history curriculum was more biblical-based than factual. She warned me that stem cell research, vaccines, genetic modification of crops, and other areas of research in biological science were examples of humans trying to be like God. At the time, biologist Richard Dawkins' The God Delusion was a bestseller and science seemed like an excuse to not believe in God, so she and my father discouraged me from studying it.
The gaps in my knowledge left me feeling frustrated and embarrassed. The solution was to learn about the things that had been censored from my education, but several obstacles stood in the way.
"When I first learned about fundamentalism, my parents' behavior finally made sense."
I lacked a good foundation in basic mathematics after being taught by my mother, who never graduated college. My father, who holds a graduate degree in computer science, repeatedly told me that I inherited my mother's "bad math genes" and was therefore ill-equipped for science. While my brothers excelled at math under his supervision and were even encouraged toward careers in engineering and psychology, I was expected to do well in other subjects, such as literature. When I tried to change this by enrolling in honors math and science classes, they scolded me -- so reluctantly, I dropped math. By the time I graduated high school, I was convinced that math and science were beyond me.
When I look back at my high school transcripts, that sense of failure was unfounded: my grades were mostly A's and B's, and I excelled in honors biology. Even my elementary standardized test scores don't reflect a student disinclined toward STEM, because I consistently scored in the top percentile for sciences. Teachers often encouraged me to consider studying science in college. Why then, I wondered, did my parents reject that idea? Why did they work so hard to sway me from that path? It wasn't until I moved away from my parents' home and started working to put myself through community college that I discovered my passion for both biology and science writing.
As a young adult venturing into the field of science communication, I've become fascinated with understanding communities that foster antagonistic views toward science. When I first learned about fundamentalism, my parents' behavior finally made sense. It is the foundation of the Religious Right, a right-wing Christian group which heavily influences the Republican party in the United States. The Religious Right crusades against secular education, stem cell research, abortion, evolution, and other controversial issues in science and medicine on the basis that they contradict Christian beliefs. They are quietly overturning the separation of church and state in order to enforce their religion as policy -- at the expense of science and progress.
Growing up in this community, I learned that strong feelings about these issues arise from both a lack of science literacy and a distrust of experts. Those who are against genetic modification of crops don't understand that GMO research aims to produce more, and longer-lasting, food for a growing planet. The anti-vaxx movement is still relying on a deeply flawed study that was ultimately retracted. Those who are against stem cell research don't understand how it works or the important benefits it provides the field of medicine, such as discovering new treatment methods.
In fact, at one point the famous Christian radio show Focus on the Family spread anti-vaxx mentality when they discussed vaccines that, long ago, were derived from aborted fetal cells. Although Focus on the Family now endorses vaccines, at the time it was enough to convince my own mother, who listened to the show every morning, not to vaccinate us unless the law required it.
"In everyday interactions with skeptics, science communicators need to shift their focus from convincing to discussing."
We can help clear up misunderstandings by sharing the facts, but the real challenge lies in willful ignorance. It was hard for me to accept, but I've come to understand that I'm not going to change anyone's mind. It's up to an individual to evaluate the facts, consider the arguments for and against, and make his or her own decision.
As my parents grew older and my siblings and I introduced them to basic concepts in science, they came around to trusting the experts a little more. They now see real doctors instead of homeopathic practitioners. They acknowledge our world's changing climate instead of denying it. And they even applaud two of their children for pursuing careers in science. Although they have held on to their fundamentalism and we still disagree on many issues, these basic changes give me hope that people in deeply skeptical communities are not entirely out of reach.
In everyday interactions with skeptics, science communicators need to shift their focus from convincing to discussing. This means creating an open dialogue with the intention of being understanding and helpful, not persuasive. This approach can be beneficial in both personal and online interactions. There are people within these movements who have doubts, and their doubts will grow as we continue to feed them through discussion.
People will only change their minds when it is the right time for them to do so. We need to be there ready to hold their hand and lead them toward truth when they reach out. Until then, all we can do is keep the channels of communication open, keep sharing the facts, and fight the spread of misinformation. Science is the pursuit of truth, and as scientists and science communicators, sometimes we need to let the truth speak for itself. We're just there to hold the megaphone.
A baby who cannot tolerate milk due to an allergy.
Like any life-threatening medical condition that affects children, food allergies can traumatize more than just the patient. My wife and I learned this one summer afternoon when our daughter was three years old.
Emergency room visits for anaphylaxis in children more than doubled from 2010 to 2016.
At an ice cream parlor, I gave Samantha a lick of my pistachio cone; within seconds, red blotches erupted on her skin, her lips began to swell, and she complained that her throat felt funny. We rushed her to the nearest emergency room, where a doctor injected her with epinephrine. Explaining that the reaction, known as anaphylaxis, could have been fatal if left unchecked, he advised us to have her tested for nut allergies—and to start carrying an injector of our own.
After an allergist confirmed Sam's vulnerability to tree nuts and peanuts, we figured that keeping her safe would be relatively simple. But food allergies often come in bunches. Over the next year, she wound up back in the ER after eating bread with sesame seeds at an Italian restaurant, and again after slurping buckwheat noodles at our neighborhood Japanese. She hated eggs, so we discovered that (less severe) allergy only when she vomited after eating a variety of products containing them.
In recent years, a growing number of families have had to grapple with such challenges. An estimated 32 million Americans have food allergies, or nearly 10 percent of the population—10 times the prevalence reported 35 years ago. The severity of symptoms seems to be increasing, too. According to a study released in January by Food Allergy Research & Education (FARE), a Virginia-based nonprofit, insurance claims for anaphylactic food reactions rose 377 percent in the U.S. from 2007 to 2016.
Because food allergies most commonly emerge in childhood, these trends are largely driven by the young. An insurance-industry study found that emergency room visits for anaphylaxis in children more than doubled from 2010 to 2016. Peanut allergies, once rare, tripled in kids between 1997 and 2008. "The first year, it was 1 in 250," says Scott Sicherer, chief of pediatric allergy and immunology at New York City's Mount Sinai Hospital, who led that study. "When we did the next round of research, in 2002, it was 1 in 125. I thought there must be a mistake. But by 2008, it was 1 in 70."
The forces behind these dire statistics—as well as similar numbers throughout the developed world—have yet to be positively identified. But the leading suspects are elements of our modern lifestyle that can throw the immune system out of whack, prompting potentially deadly overreactions to harmless proteins. Although parents can take a few steps that might lessen their children's risk, societal changes may be needed to brighten the larger epidemiological picture.
Meanwhile, scientists are racing to develop therapies that can induce patients' hyped-up immune defenses to chill. And lately, they've made some big strides toward that goal.
A Variety of Culprits
In the United States, about 90 percent of allergic reactions come from eight foods: milk, eggs, peanuts, tree nuts, soy, wheat, fish, and shellfish. The list varies from country to country, depending on dietary customs, but what the trigger foods all have in common is proteins that can survive breakdown in the stomach and enter the bloodstream more or less intact.
"When we were kids, we played in the dirt. Today, children tend to be on their screens, inside sealed buildings."
A food allergy results from a chain of biochemical misunderstandings. The first time the immune system encounters an allergen (as a protein that triggers an allergy is known), it mistakes the substance for a hostile invader—perhaps a parasite with a similar molecular profile. In response, it produces an antibody called immunoglobin E (IgE), which is designed to bind to a specific protein and flag it for attack. These antibodies circulate through the bloodstream and attach to immune-system foot soldiers known as mast cells and basophils, which congregate in the nose, throat, lungs, skin, and gastrointestinal tract.
The next time the person is exposed to the allergen, the IgE antibodies signal the warrior cells to blast the intruder with histamines and other chemical weapons. Tissues in the affected areas swell and leak fluid; blood pressure may fall. Depending on the strength of the reaction, collateral damage to the patient can range from unpleasant—itching, runny nose, nausea—to catastrophic.
This kind of immunological glitchiness runs in families. Genome-wide association studies have identified a dozen genes linked to allergies of all types, and twin studies suggest that about 80 percent of the risk of food allergies is heritable. But why one family member shows symptoms while another doesn't remains unknown. Nor can genetics explain why food allergy rates have skyrocketed in such a brief period. For that, we must turn to the environment.
First, it's important to note that rates of all allergies are rising—including skin and respiratory afflictions—though none as rapidly or with as much risk of anaphylaxis as those involving food. The takeoff was already underway in the late 1980s, when British epidemiologist David P. Strachan found that children in larger households had fewer instances of hay fever. The reason, he suggested, was that their immune systems were strengthened by exposure to their siblings' germs. Since then, other researchers have discerned more evidence for Strachan's "hygiene hypothesis": higher rates of allergy (as well as autoimmune disorders) in cities versus rural areas, in industrialized countries versus developing ones, in lab animals raised under sterile conditions versus those exposed to germs.
Fending off a variety of pathogens, experts theorize, helps train the immune system to better distinguish friend from foe, and to respond to threats in a more nuanced manner. In an era of increasing urbanization, shrinking family sizes, and more sheltered lifestyles, such conditioning may be harder to come by. "When we were kids, we played in the dirt," observes Cathryn R. Nagler, a professor and food allergy researcher at the University of Chicago. "Today, children tend to be on their screens, inside sealed buildings."
But other factors may be driving the allergy epidemic as well. More time indoors, for example, means less exposure to sunlight, which can lead to a deficiency in vitamin D—a nutrient crucial to immune system regulation. The growing popularity of processed foods filled with refined fats and sugars may play a role, along with rising rates of obesity, by promoting tissue inflammation that could increase some people's risk of immunological mayhem. And the surge in allergies also correlates with several trends that may be altering the human microbiome, the community of microbes (including bacteria, viruses, and fungi, among others) that inhabits our guts, skin, and bodily orifices.
The microbiome connection may be particularly relevant to food allergies. In 2014, a team led by Nagler published a landmark study showing that Clostridia, a common class of gut bacteria, protects against these allergies. When the researchers fed peanut allergens to germ-free mice (born and raised in sterile conditions) and to mice treated with antibiotics as newborns (reducing their gut bacteria), the animals showed a strong immunological response. This sensitization could be reversed, however, by reintroducing Clostridia—but not another class of bacteria, Bacteroides—into the mice. Further experiments revealed that Clostridia caused immune cells to produce high levels of interleukin-22 (IL-22), a signaling molecule known to decrease the permeability of the intestinal lining.
"In simple terms," Nagler says, "what we found is that these bacteria prevent food allergens from gaining access to the blood in an intact form that elicits an allergic reaction."
A growing body of evidence suggests that our eating habits are throwing our gut microbiota off-balance, in part by depriving helpful species of the dietary fiber they feed on. Our increasing exposure to antibiotics and antimicrobial compounds may be harming our beneficial bugs as well. These depletions could affect kids from the moment they enter the world: Because babies are seeded with their mothers' microbiota as they pass through the birth canal, they may be inheriting a less diverse microbiome than did previous generations. And the rising rate of caesarian deliveries may be further depriving our children of the bugs they need.
On expert suggests two measures worth a try: increasing consumption of fiber, and reducing use of antimicrobial agents, from antibacterial cleaners to antibiotics.
So which culprit is most responsible for the food allergy upsurge? "The illnesses that we're measuring are complex," says Sicherer. "There are multiple genetic inputs, which interact with one another, and there are multiple environmental inputs, which interact with each other and with the genes. There's not one single thing that's causing this. It's a conglomeration."
What Parents Can Do
For anyone hoping to reduce their child's or their own odds of developing a food allergy (rates of adult onset are also increasing), the current state of science offers few guideposts. As with many other areas of health research, it's hard to know when the data is solid enough to warrant a particular course of action. A case in point: the American Academy of Pediatrics once recommended that children at risk of allergy to peanuts (as evidenced by family history, other food allergies, or eczema) wait to eat them until age three; now, the AAP advises those parents to start their babies at four months, citing epidemiological evidence that early exposure may prevent peanut allergies.
And it's all too easy for a layperson to draw mistaken conclusions from media coverage of such research—inferring, for instance, that taking commercially available probiotics might have a protective effect. Unfortunately, says Nagler, none of those products even contain the relevant kind of bacteria.
Although, as a research scientist, she refrains from giving medical advice, Nagler does suggest (based on a large body of academic literature) that two measures are worth a try: increasing consumption of fiber, and reducing use of antimicrobial agents, from antibacterial cleaners to antibiotics. Yet she acknowledges that it's not always possible to avoid the suspected risk factors for food allergies. Sometimes an antibiotic is a lifesaving necessity, for example—and it's tough to avoid exposure to such drugs altogether, due to their use in animal feed and their consequent presence in many foods and in the water supply. If these chemicals are contributing to the food allergy epidemic, protecting ourselves will require action from farmers, doctors, manufacturers, and policymakers.
My family's experience illustrates the limits of healthy lifestyle choices in mitigating allergy risk. My daughter and son were born without C-sections; both were breastfed as well, receiving maximum microbial seeding from their mother. As a family, we eat exemplary diets, and no one could describe our home as excessively clean. Yet one child can't taste nuts, sesame, or buckwheat without becoming dangerously ill. "You can do everything right and still have allergies," says Ian A. Myles, a staff clinician at the National Institute of Allergy and Infectious Diseases. "You can do everything wrong and not have allergies. The two groups overlap."
The Latest Science Shows Promise
But while preventing all food allergies is clearly unrealistic, researchers are making remarkable progress in developing better treatments—therapies that, instead of combating symptoms after they've started (like epinephrine or antihistamines), aim to make patients less sensitive to allergens in the first place. One promising approach is oral immunotherapy (OIT), in which patients consume small but slowly increasing amounts of an allergen, gradually reducing their sensitivity. A study published last year in the New England Journal of Medicine showed that an experimental OIT called AR101, consisting of a standardized peanut powder mixed into food, enabled 67 percent of participants to tolerate a dose equivalent to two peanut kernels—a potential lifesaver if they were accidentally exposed to the real thing.
Because OIT itself can trigger troublesome reactions in some patients, however, it's not for everyone. Another experimental treatment, sublingual immunotherapy (SLIT) uses an allergen solution or dissolving tablet placed beneath the tongue; although its results are less robust than OIT's, it seems to generate milder side effects. Epicutaneous immunotherapy (EPIT) avoids the mouth entirely, using a technology similar to a nicotine patch to deliver allergens through the skin. Researchers are also exploring the use of medications known as biologics, aiming to speed up the action of immunotherapies by suppressing IgE or targeting other immune-system molecules.
These findings suggest that drugs based on microbial metabolites could help protect vulnerable individuals against a wide range of allergies.
One downside of the immunotherapy approach is that in most cases the allergen must be taken indefinitely to maintain desensitization. To provide a potentially permanent fix, scientists are working on vaccines that use DNA or peptides (protein fragments) from allergens to reset patients' immune systems.
Nagler is attacking the problem from a different angle—one that starts with the microbiome. In a recent study, a follow-up to her peanut-allergy investigation, she and her colleagues found that Clostridia bacteria protect mice against milk allergy as well; they also identified a particular species responsible, known as Anaerostipes caccae. The bugs, the team determined, produce a short-chain fatty acid called butyrate, which modulates many immune activities crucial to maintaining a well-sealed gut.
These findings suggest that drugs based on microbial metabolites could help protect vulnerable individuals against a wide range of allergies. Nagler has launched a company, ClostraBio, to develop biotherapeutics based on this notion; she expects its first product, using synthetic butyrate, to be ready for clinical trials within the next two years.
My daughter could well be a candidate for such a medication. Sam, now 15, is a vibrant, resilient kid who handles her allergies with confidence and humor. Thanks to vigilance and luck (on her part as well as her parents'), she hasn't had another food-related ER visit in more than a decade; she's never had to use her Epi-Pen. Still, she says, she would welcome the arrival of a pill that could reduce the danger. "I've learned how to watch out for myself," she says. "But it would be nice not to have to be so careful."