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.]
Scientists: Don’t Leave Religious Communities Out in the Cold
A star of David reflects the perspective of a Rabbi/M.D. on an important question about the future of society.
[Editor's Note: This essay is in response to our current Big Question series: "How can the religious and scientific communities work together to foster a culture that is equipped to face humanity's biggest challenges?"]
I humbly submit that the question should be rephrased: How can the religious and scientific communities NOT work together to face humanity's biggest challenges? The stakes are higher than ever before, and we simply cannot afford to go it alone.
I believe in evolution -- the evolution of the relationship of science and religion.
The future of the world depends on our collaboration. I believe in evolution -- the evolution of the relationship of science and religion. Science and religion have lived in alternately varying relationships ranging from peaceful coexistence to outright warfare. Today we have evolved and have begun to embrace the biological relationship of mutualism. This is in part due to the advances in medicine and science.
Previous scientific discoveries and paradigm shifts precipitated varying theological responses. With Copernicus, we grappled with the relationship of the earth to the universe. With Darwin, we re-evaluated the relationship of man to the other creatures on earth. However, as theologically complex as these debates were, they had no practical relevance to the common man. Indeed, it was possible for people to live their entire lives happily without pondering these issues.
In the 21st century, the microscope is honing in further, with discoveries relating to the understanding of the very nature and composition of the human being, both body and mind/soul. Thus, as opposed to the past, the implications of the latest scientific advances directly affect the common man. The religious implications are not left to the ivory tower theologians. Regular people are now confronted with practical religious questions previously unimagined.
For example, in the field of infertility, if a married woman undergoes donor insemination, is she considered an adulteress? If a woman of one faith gestates the child of another faith, to whose faith does the child belong? If your heart is failing, can you avail yourself of stem cells derived from human embryos, or would you be considered an accomplice to murder? Would it be preferable to use artificially derived stem cells if they are available?
The implications of our current debates are profound, and profoundly personal. Science is the great equalizer. Every living being can potentially benefit from medical advances. We are all consumers of the scientific advances, irrespective of race or religion. As such, we all deserve a say in their development.
If the development of the science is collaborative, surely the contemplation of its ethical/religious applications should likewise be.
With gene editing, uterus transplants, head transplants, artificial reproductive seed, and animal-human genetic combinations as daily headlines, we have myriad ethical dilemmas to ponder. What limits should we set for the uses of different technologies? How should they be financed? We must even confront the very definition of what it means to be human. A human could receive multiple artificial transplants, 3D printed organs, genetic derivatives, or organs grown in animals. When does a person become another person or lose his identity? Will a being produced entirely from synthetic DNA be human?
In the Middle Ages, it was possible for one person to master all of the known science, and even sometimes religion as well, such as the great Maimonides. In the pre-modern era, discoveries were almost always attributed to one individual: Jenner, Lister, Koch, Pasteur, and so on. Today, it is impossible for any one human being to master medicine, let alone ethics, religion, etc. Advances are made not usually by one person but by collaboration, often involving hundreds, if not thousands of people across the globe. We cite journal articles, not individuals. Furthermore, the magnitude and speed of development is staggering. Add artificial intelligence and it will continue to expand exponentially.
If the development of the science is collaborative, surely the contemplation of its ethical/religious applications should likewise be. The issues are so profound that we need all genes on deck. The religious community should have a prominent seat at the table. There is great wisdom in the religious traditions that can inform contemporary discussions. In addition, the religious communities are significant consumers of, not to mention contributors to, the medical technology.
An ongoing dialogue between the scientific and religious communities should be an institutionalized endeavor, not a sporadic event, reactive to a particular discovery. The National Institutes of Health or other national organizations could provide an online newsletter designed for the clergy with a summary of the latest developments and their potential applications. An annual meeting of scientists and religious leaders could provide a forum for the scientists to appreciate the religious ramifications of their research (which may be none as well) and for the clergy to appreciate the rapidly developing fields of science and the implications for their congregants. Theological seminaries must include basic scientific literacy as part of their curricula.
We need the proper medium of mutual respect and admiration, despite healthy disagreement.
How do we create a "culture"? Microbiological cultures take time and require the proper medium for maximal growth. If one of the variables is altered, the culture can be affected. To foster a culture of continued successful collaboration between scientists and religious communities, we likewise need the proper medium of mutual respect and admiration, despite healthy disagreement.
The only way we can navigate these unchartered waters is through constant, deep and meaningful collaboration every single step of the way. By cultivating a mutualistic relationship we can inform, caution and safeguard each other to maximize the benefits of emerging technologies.
[Ed. Note: Don't miss the other perspectives in this Big Question series, from a science scholar and a Reverend/molecular geneticist.]
Why the Pope Should Officially Embrace Biotechnology
Pope Francis processing into Mass at St. Peter's Square.
[Editor's Note: This essay is in response to our current Big Question series: "How can the religious and scientific communities work together to foster a culture that is equipped to face humanity's biggest challenges?"]
In May 2015, Pope Francis issued an encyclical with the subtitle "On Care for Our Common Home." The letter addressed various environmental issues, such as pollution and climate change, and it reminded all of us that we are to steward the Earth, not plunder it.
Without question, biotechnology has saved the lives of millions – perhaps billions – of people.
The Pope's missive demonstrates that he is both theologically sound and scientifically literate, a very rare combination. That is why he should now author an encyclical urging the world to embrace the life-giving promise of biotechnology.
Without question, biotechnology has saved the lives of millions – perhaps billions – of people. Arguably, vaccines were the most important invention in the history of mankind. It is thought that, in the 20th century alone, at least 300 million people were killed by smallpox. Today, the number is zero, thanks to vaccination. Other killers, such as measles, diphtheria, meningitis, and diarrhea, are kept at bay because of vaccines.
Biotechnology has also saved the lives of diabetics. At one time, insulin was extracted from pig pancreases, and there were fears that we would run out of it. Then, in the 1970s, crucial advances in biotechnology allowed for the gene that encodes human insulin to be expressed in bacteria. Today, diabetics can get extremely pure insulin thanks to this feat of genetic modification.
Likewise, genetic modification has improved the environment and the lives of farmers all over the world, none more so than those living in developing countries. According to a meta-analysis published in PLoS ONE, GMOs have "reduced chemical pesticide use by 37%, increased crop yields by 22%, and increased farmer profits by 68%."
Even better, GMOs also could help improve the lives of non-farmers. In poor parts of the world, malnutrition is still extremely common. People whose diets consist mostly of rice, for example, often suffer from vitamin A deficiency, which can lead to blindness. Golden Rice, which was genetically modified to contain a vitamin A precursor, was created and given away for free in an act of humanitarianism. Other researchers have created a genetically modified cassava to help combat iron and zinc deficiencies among children in Africa.
Despite these groundbreaking advances, the public is turning against biotechnology.
Biotechnology has also helped women with mitochondrial disease bear healthy children. Children inherit their mitochondria, the powerhouses of our cells, solely from their mothers. Mitochondrial defects can have devastating health consequences. Using what is colloquially called the "three-parent embryo technique," a healthy woman donates an egg. The nucleus of that egg is removed, and that of the mother-to-be is put in its place. Then, the egg is fertilized using conventional in vitro fertilization. In April 2016, the world's first baby was born using this technique.
Yet, despite these groundbreaking advances, the public is turning against biotechnology. Across America and Europe, anti-vaccine activists have helped usher in a resurgence of entirely preventable diseases, such as measles. Anti-GMO activists have blocked the implementation of Golden Rice. And other activists decry reproductive technology as "playing God."
Nonsense. These technologies improve overall welfare and save lives. Those laudable goals are shared by all the world's major religions as part of their efforts to improve the human condition. That is why it is vitally important, if science is to succeed in eradicating illness, that it gets a full-throated endorsement from powerful religious leaders.
In his 2015 encyclical, Pope Francis wrote:
Any technical solution which science claims to offer will be powerless to solve the serious problems of our world if humanity loses its compass, if we lose sight of the great motivations which make it possible for us to live in harmony, to make sacrifices and to treat others well.
He is correct. Indeed, when people are protesting life-saving vaccines, we have lost not only our moral compass but our intellect, too.
Imagine the impact he could have if Pope Francis issued an encyclical titled "On Protecting Our Most Vulnerable." He could explain that some children, stricken with cancer or suffering from an immunological disease, are unable to receive vaccines. Therefore, we all have a moral duty to be vaccinated in order to protect them through herd immunity.
Or imagine the potential impact of an encyclical titled "On Feeding the World," in which the Pope explained that rich countries have an obligation to poorer ones to feed them by all means necessary, including the use of biotechnology. If Muslim, Buddhist, and Hindu scholars throughout Asia and Africa also embraced the message, its impact could be multiplied.
In order to be successful, science needs religion; in order to be practical, religion needs science.
In order to be successful, science needs religion; in order to be practical, religion needs science.
Unfortunately, in discussions of the relationship between science and religion, we too often focus on the few areas in which they conflict. But this misses a great opportunity. By combining technological advances with moral authority, science and religion can work together to save the world.
[Ed. Note: Don't miss the other perspectives in this Big Question series, from a Rabbi/M.D. and a Reverend/molecular geneticist.]