Abortions Before Fetal Viability Are Legal: Might Science and the Change on the Supreme Court Undermine That?
This article is part of the magazine, "The Future of Science In America: The Election Issue," co-published by LeapsMag, the Aspen Institute Science & Society Program, and GOOD.
Viability—the potential for a fetus to survive outside the womb—is a core dividing line in American law. For almost 50 years, the Supreme Court of the United States has struck down laws that ban all or most abortions, ruling that women's constitutional rights include choosing to end pregnancies before the point of viability. Once viability is reached, however, states have a "compelling interest" in protecting fetal life. At that point, states can choose to ban or significantly restrict later-term abortions provided states allow an exception to preserve the life or health of the mother.
This distinction between a fetus that could survive outside its mother's body, albeit with significant medical intervention, and one that could not, is at the heart of the court's landmark 1973 decision in Roe v. Wade. The framework of viability remains central to the country's abortion law today, even as some states have passed laws in the name of protecting women's health that significantly undermine Roe. Over the last 30 years, the Supreme Court has upheld these laws, which have the effect of restricting pre-viability abortion access, imposing mandatory waiting periods, requiring parental consent for minors, and placing restrictions on abortion providers.
Viability has always been a slippery notion on which to pin legal rights.
Today, the Guttmacher Institute reports that more than half of American women live in states whose laws are considered hostile to abortion, largely as a result of these intrusions on pre-viability abortion access. Nevertheless, the viability framework stands: while states can pass pre-viability abortion restrictions that (ostensibly) protect the health of the woman or that strike some kind a balance between women's rights and fetal life, it is only after viability that they can completely favor fetal life over the rights of the woman (with limited exceptions when the woman's life is threatened). As a result, judges have struck down certain states' so-called heartbeat laws, which tried to prohibit abortions after detection of a fetal heartbeat (as early as six weeks of pregnancy). Bans on abortion after 12 or 15 weeks' gestation have also been reversed.
Now, with a new Supreme Court Justice expected to be hostile to abortion rights, advances in the care of preterm babies and ongoing research on artificial wombs suggest that the point of viability is already sooner than many assume and could soon be moved radically earlier in gestation, potentially providing a legal basis for earlier and earlier abortion bans.
Viability has always been a slippery notion on which to pin legal rights. It represents an inherently variable and medically shifting moment in the pregnancy timeline that the Roe majority opinion declined to firmly define, noting instead that "[v]iability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." Even in 1977, this definition was an optimistic generalization. Every baby is different, and while some 28-week infants born the year Roe was decided did indeed live into adulthood, most died at or shortly after birth. The prognosis for infants born at 24 weeks was much worse.
Today, a baby born at 28 weeks' gestation can be expected to do much better, largely due to the development of surfactant treatment in the early 1990s to help ease the air into babies' lungs. Now, the majority of 24-week-old babies can survive, and several very premature babies, born just shy of 22 weeks' gestation, have lived into childhood. All this variability raises the question: Should the law take a very optimistic, if largely unrealistic, approach to defining viability and place it at 22 weeks, even though the overall survival rate for those preemies remains less than 10% today? Or should the law recognize that keeping a premature infant alive requires specialist care, meaning that actual viability differs not just pregnancy-to-pregnancy but also by healthcare facility and from country to country? A 24-week premature infant born in a rural area or in a developing nation may not be viable as a practical matter, while one born in a major U.S. city with access to state-of-the-art care has a greater than 70% chance of survival. Just as some extremely premature newborns survive, some full-term babies die before, during, or soon after birth, regardless of whether they have access to advanced medical care.
To be accurate, viability should be understood as pregnancy-specific and should take into account the healthcare resources available to that woman. But state laws can't capture this degree of variability by including gestation limits in their abortion laws. Instead, many draw a somewhat arbitrary line at 22, 24, or 28 weeks' gestation, regardless of the particulars of the pregnancy or the medical resources available in that state.
As variable and resource-dependent as viability is today, science may soon move that point even earlier. Ectogenesis is a term coined in 1923 for the growth of an organism outside the body. Long considered science fiction, this technology has made several key advances in the past few years, with scientists announcing in 2017 that they had successfully gestated premature lamb fetuses in an artificial womb for four weeks. Currently in development for use in human fetuses between 22 and 23 weeks' gestation, this technology will almost certainly seek to push viability earlier in pregnancy.
Ectogenesis and other improvements in managing preterm birth deserve to be celebrated, offering new hope to the parents of very premature infants. But in the U.S., and in other nations whose abortion laws are fixed to viability, these same advances also pose a threat to abortion access. Abortion opponents have long sought to move the cutoff for legal abortions, and it is not hard to imagine a state prohibiting all abortions after 18 or 20 weeks by arguing that medical advances render this stage "the new viability," regardless of whether that level of advanced care is available to women in that state. If ectogenesis advances further, the limit could be moved to keep pace.
The Centers for Disease Control and Prevention reports that over 90% of abortions in America are performed at or before 13 weeks, meaning that in the short term, only a small number women would be affected by shifting viability standards. Yet these women are in difficult situations and deserve care and consideration. Research has shown that women seeking later terminations often did not recognize that they were pregnant or had their dates quite wrong, while others report that they had trouble accessing a termination earlier in pregnancy, were afraid to tell their partner or parents, or only recently received a diagnosis of health problems with the fetus.
Shifts in viability over the past few decades have already affected these women, many of whom report struggling to find a provider willing to perform a termination at 18 or 20 weeks out of concern that the woman may have her dates wrong. Ever-earlier gestational limits would continue this chilling effect, making doctors leery of terminating a pregnancy that might be within 2–4 weeks of each new ban. Some states' existing gestational limits on abortion are also inconsistent with prenatal care, which includes genetic testing between 12 and 20 weeks' gestation, as well as an anatomy scan to check the fetus's organ development performed at approximately 20 weeks. If viability moves earlier, prenatal care will be further undermined.
Perhaps most importantly, earlier and earlier abortion bans are inconsistent with the rights and freedoms on which abortion access is based, including recognition of each woman's individual right to bodily integrity and decision-making authority over her own medical care. Those rights and freedoms become meaningless if abortion bans encroach into the weeks that women need to recognize they are pregnant, assess their options, seek medical advice, and access appropriate care. Fetal viability, with its shifting goalposts, isn't the best framework for abortion protection in light of advancing medical science.
Ideally, whether to have an abortion would be a decision that women make in consultation with their doctors, free of state interference. The vast majority of women already make this decision early in pregnancy; the few who come to the decision later do so because something has gone seriously wrong in their lives or with their pregnancies. If states insist on drawing lines based on historical measures of viability, at 24 or 26 or 28 weeks, they should stick with those gestational limits and admit that they no longer represent actual viability but correspond instead to some form of common morality about when the fetus has a protected, if not absolute, right to life. Women need a reasonable amount of time to make careful and informed decisions about whether to continue their pregnancies precisely because these decisions have a lasting impact on their bodies and their lives. To preserve that time, legislators and the courts should decouple abortion rights from ectogenesis and other advances in the care of extremely premature infants that move the point of viability ever earlier.
[Editor's Note: This article was updated after publication to reflect Amy Coney Barrett's confirmation. To read other articles in this special magazine issue, visit the e-reader version.]
Dadbot, Wifebot, Friendbot: The Future of Memorializing Avatars
In 2016, when my family found out that my father was dying from cancer, I did something that at the time felt completely obvious: I started building a chatbot replica of him.
I simply wanted to create an interactive way to share key parts of his life story.
I was not under any delusion that the Dadbot, as I soon began calling it, would be a true avatar of him. From my research about the voice computing revolution—Siri, Alexa, the Google Assistant—I knew that fully humanlike AIs, like you see in the movies, were a vast ways from technological reality. Replicating my dad in any real sense was never the goal, anyway; that notion gave me the creeps.
Instead, I simply wanted to create an interactive way to share key parts of his life story: facts about his ancestors in Greece. Memories from growing up. Stories about his hobbies, family life, and career. And I wanted the Dadbot, which sent text messages and audio clips over Facebook Messenger, to remind me of his personality—warm, erudite, and funny. So I programmed it to use his distinctive phrasings; to tell a few of his signature jokes and sing his favorite songs.
While creating the Dadbot, a laborious undertaking that sprawled into 2017, I fixated on two things. The first was getting the programming right, which I did using a conversational agent authoring platform called PullString. The second, far more wrenching concern was my father's health. Failing to improve after chemotherapy and immunotherapy, and steadily losing energy, weight, and the animating sparkle of life, he died on February 9.
John Vlahos at a family reunion in the summer of 2016, a few months after his cancer diagnosis.
(Courtesy James Vlahos)
After a magazine article that I wrote about the Dadbot came out in the summer of 2017, messages poured in from readers. While most people simply expressed sympathy, some conveyed a more urgent message: They wanted their own memorializing chatbots. One man implored me to make a bot for him; he had been diagnosed with cancer and wanted his six-month-old daughter to have a way to remember him. A technology entrepreneur needed advice on replicating what I did for her father, who had stage IV cancer. And a teacher in India asked me to engineer a conversational replica of her son, who had recently been struck and killed by a bus.
Journalists from around the world also got in touch for interviews, and they inevitably came around to the same question. Will virtual immortality, they asked, ever become a business?
The prospect of this happening had never crossed my mind. I was consumed by my father's struggle and my own grief. But the notion has since become head-slappingly obvious. I am not the only person to confront the loss of a loved one; the experience is universal. And I am not alone in craving a way to keep memories alive. Of course people like the ones who wrote me will get Dadbots, Mombots, and Childbots of their own. If a moonlighting writer like me can create a minimum viable product, then a company employing actual computer scientists could do much more.
But this prospect raises unanswered and unsettling questions. For businesses, profit, and not some deeply personal mission, will be the motivation. This shift will raise issues that I didn't have to confront. To make money, a virtual immortality company could follow the lucrative but controversial business model that has worked so well for Google and Facebook. To wit, a company could provide the memorializing chatbot for free and then find ways to monetize the attention and data of whoever communicated with it. Given the copious amount of personal information flowing back and forth in conversations with replica bots, this would be a data gold mine for the company—and a massive privacy risk for users.
Virtual immortality as commercial product will doubtless become more sophisticated.
Alternately, a company could charge for memorializing avatars, perhaps with an annual subscription fee. This would put the business in a powerful position. Imagine the fee getting hiked each year. A customer like me would find himself facing a terrible decision—grit my teeth and keep paying, or be forced to pull the plug on the best, closest reminder of a loved one that I have. The same person would effectively wind up dying twice.
Another way that a beloved digital avatar could die is if the company that creates it ceases to exist. This is no mere academic concern for me: Earlier this year, PullString was swallowed up by Apple. I'm still able to access the Dadbot on my own computer, fortunately, but the acquisition means that other friends and family members can no longer chat with him remotely.
Startups like PullString, of course, are characterized by impermanence; they tend to get snapped up by bigger companies or run out of venture capital and fold. But even if big players like, say, Facebook or Google get into the virtual immortality game, we can't count on them existing even a few decades from now, which means that the avatars enabled by their technology would die, too.
The permanence problem is the biggest hurdle faced by the fledgling enterprise of virtual immortality. So some entrepreneurs are attempting to enable avatars whose existence isn't reliant upon any one company or set of computer servers. "By leveraging the power of blockchain and decentralized software to replicate information, we help users create avatars that live on forever," says Alex Roy, the founder and CEO of the startup Everlife.ai. But until this type of solution exists, give props to conventional technology for preserving memories: printed photos and words on paper can last for centuries.
The fidelity of avatars—just how lifelike they are—also raises serious concerns. Before I started creating the Dadbot, I worried that the tech might be just good enough to remind my family of the man it emulated, but so far off from my real father that it gave us all the creeps. But because the Dadbot was a simple chatbot and not some all-knowing AI, and because the interface was a messaging app, there was no danger of him encroaching on the reality of my actual dad.
But virtual immortality as commercial product will doubtless become more sophisticated. Avatars will have brains built by teams of computer scientists employing the latest techniques in conversational AI. The replicas will not just text but also speak, using synthetic voices that emulate the ones of the people being memorialized. They may even come to life as animated clones on computer screens or in 3D with the help of virtual reality headsets.
What fascinates me is how technology can help to preserve the past—genuine facts and memories from peoples' lives.
These are all lines that I don't personally want to cross; replicating my dad was never the goal. I also never aspired to have some synthetic version of him that continued to exist in the present, capable of acquiring knowledge about the world or my life and of reacting to it in real time.
Instead, what fascinates me is how technology can help to preserve the past—genuine facts and memories from people's lives—and their actual voices so that their stories can be shared interactively after they have gone. I'm working on ideas for doing this via voice computing platforms like Alexa and Assistant, and while I don't have all of the answers yet, I'm excited to figure out what might be possible.
[Adapted from Talk to Me: How Voice Computing Will Transform the Way We Live, Work, and Think (Houghton Mifflin Harcourt, March 26, 2019).]
The Best Kept Secret on the International Space Station
[Editor's Note: This video is the second of a five-part series titled "The Future Is Now: The Revolutionary Power of Stem Cell Research." Produced in partnership with the Regenerative Medicine Foundation, and filmed at the annual 2019 World Stem Cell Summit, this series illustrates how stem cell research will profoundly impact life on earth.]
Kira Peikoff was the editor-in-chief of Leaps.org from 2017 to 2021. As a journalist, her work has appeared in The New York Times, Newsweek, Nautilus, Popular Mechanics, The New York Academy of Sciences, and other outlets. She is also the author of four suspense novels that explore controversial issues arising from scientific innovation: Living Proof, No Time to Die, Die Again Tomorrow, and Mother Knows Best. Peikoff holds a B.A. in Journalism from New York University and an M.S. in Bioethics from Columbia University. She lives in New Jersey with her husband and two young sons. Follow her on Twitter @KiraPeikoff.