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.]
Viv spent nearly an hour choosing her body.
She considered going as her eight year-old self. She would stand eye-to-eye with her father in his hospital bed, shedding tears and crying: please don't go, daddy. But that was too obvious. It would offend him.
He became data coursing through a network, able to embody any form, to outlive physical decay.
She considered her eighteen year-old self. She would lean over him, scrawny and tall, her lips trembling with anger: you're being selfish, dad. But that would lead to shouting.
She considered every form, even reviving people from the past: her mother, her grandfather, her little sister Mary. How would her father react to Mary walking in? He would think himself dead. She could whisper a message to him: Stay alive, dad. God commands it.
In the end, Viv chose the look of her last days as a biological person. Thirty-one years old, her auburn hair cut short, her black eyes full of longing. She watched the body print in silicon over robotic armature.
When it blinked to life, Viv stood in front of a mirror. Her face was appropriately somber, her mind in sync with her new muscles. Without thinking, she stretched her arms, arched her body, twirled on her tiptoes. She had forgotten the pleasure of sensation.
"I should do this…" The voice resonated through her. She could not help but smile. "I should do this more often… often… often." Every repetition thrilled her with sound. She began to sing an old favorite: "Times have changed… and we've often…"
But she stopped herself. This was not a day for singing.
Viv clothed her body in a blue dress, packed her tablet in a briefcase, stood in front of the mirror one last time. "I'll be there in five," she said aloud, though she did not need to.
A man's voice answered in her mind: I'm not coming.
"Gabe…"
There's no point, said the voice. We know what he'll say.
"We have to try."
I won't see him dying, Viv.
The clenching of her jaw felt like the old days. Her brother made a habit of last-minute decisions, without concern for how they affected other people, most often her.
She remembered the day he became an everperson. It was soon after their mother's death. They were supposed to visit their father in mourning, but Gabe disappeared without explanation. Viv took the full burden of solace on herself. She sat with her father in a small room, with an old Persian rug and stale furniture. His mustache was beginning to gray, his eyes beginning to wrinkle. "She's with your sister now," he said. "Your mom and Mary, I can…" He leaned in to whisper, "I can almost hear them, at night, laughing on the other side. They tell me to wait… they tell me to wait." Viv nodded for him, pretending to believe, wishing she could.
Gabe did not return her calls that evening. The next day, she began to worry. The day after, she began to look. He made no effort to hide, he simply neglected to tell her the new plan.
Gabe had taken the money from his inheritance, and booked himself an everence. It was something new back then. Viv did not understand the science, but she knew it was a destructive process. His physical brain was destroyed by lasers that scanned it neuron by neuron, creating a digital replica. He became data coursing through a network, able to embody any form, to outlive physical decay. He became an everperson.
It took three days to complete. Viv went to the facility, a converted warehouse by the Bay Bridge. She watched the new Gabe being printed over robotic armature, taking the form of his last biological self, to help with the transition. When he blinked to life, she did not know if he would be the same person, or an imperfect copy of an imperfect copy. But Gabe was totally oblivious to the pain he caused her by disappearing in that way. No robot, she thought, could be so callous.
When Viv made her own decision to everize, she deliberated for weeks, thinking through the consequences and conversations to come. Afterwards, she sat with her father in that same small room, with the Persian rug older, the furniture staler, a new cat purring at his feet.
"But it's suicide," he said.
"It's the opposite, dad. It's eternal life."
"You'd be a robot. You wouldn't be you."
"Gabe's the same as he ever was," she noted the resentment in her voice. "He's just not… physical, until he wants to be."
Her father exhaled an Arabic phrase he was using more often in his old age. La hawla wa la quwata illa billah. She had never learned his native tongue, but she looked up the phrase to understand him better. It meant something like: there is no power except in God. It was a sigh of resignation.
"Vivian," he said eventually, "Your soul is not your brain. Your soul lives on. If you kill yourself, you... it's unforgivable. Don't you want to see mom in heaven? Mary? Me?"
She wanted to believe. She wanted painfully. But when she spoke, it was barely a whisper. "I don't think that will happen, dad."
Fewer biological people meant little need for hospitals, or doctors. It would close soon.
It was the first she had ever confessed to him about God or Heaven. In as steady a voice as he could manage, her father said: "You're an adult, Viv. You do what you think is best."
She came to visit sometimes, as an everperson. He could not tell at first. But as the years went by, as his eyes wrinkled, and his hair grayed, he noticed that Viv never aged. One day he stopped talking to her. Another she stopped coming.
Now he was waiting out the last days of his life alone in a hospital bed. Viv did not want to say goodbye. It seemed such a waste.
You don't have to, Gabe spoke into her mind. Get him to sign, say anything, say it's for selling the house. Once we have full power of attorney, we can decide for him.
"It's not right." She noticed herself speaking aloud on the hoverbus. Nine nervous faces turned to her.
It's not right, she continued in her mind. Dad never forced us to pray, never forced us to —
That was mom.
But he loved her. He never changed her mind, he raised us to question, and he quietly believed. He has every right to live his way, just like we did.
To live. Not to die... When he's an everperson, he'll thank us.
That gave her pause. It might be true. She remembered her first moments as an everperson, suddenly linked to countless other minds, waking to the full expanse of human knowledge like sunlight through an open window, breathless and unexpected.
Still, she said, it's not right.
So you want him to die?
I want to convince him.
And what if you don't? There was panic in his voice. Gabe steadied himself. You brought your tablet, Viv. You know what it's for. Get him to sign.
And what if I don't?
I'll figure something out, with or without you. I won't let him die, Viv. Not this day and age.
Viv kept quiet the rest of her way there. She played memories in her mind, of every conversation she ever had with her father, every time he read her a verse or taught her a parable. She looked for a way to convince him, some doubt, some chink in his armor of belief. But she got distracted by the world outside.
It was strange to pass for a time through physical space. It took longer than she expected. Now watching the sunlight refract through the hoverbus window, she was mesmerized. Every sensation felt more real, more vivid than her memory. "I should do this more often," she said aloud.
The hospital smelled like death. It had fallen into disrepair since her mother's illness. Fewer biological people meant little need for hospitals, or doctors. It would close soon, she thought. Her footsteps echoed through the halls, along with the sounds of old televisions playing old films to keep the patients company.
The room she entered had no sound, except the whirring machines. No light, except an eerie glow filtering through the curtains. The figure on the bed was her father, his breathing strained, his skin cracked like the desert. She closed the door behind her.
When her father turned, she saw a flicker of joy in his eyes. It disappeared.
"La hawla wa la… I thought it was her."
"I am her."
He winced. "She died some twenty years ago."
Viv sat next to him. The machines whirred around them, keeping his body alive another day, or hour, or minute. "It doesn't look good, dad."
"I know."
"You broke a promise."
He held her gaze. "I did?"
"You said we'd see the bats in Australia."
"You were scared of bats."
"And you said they were cute in Oz, the giant bats, like upside down puppies chewing bananas."
He smiled, but that was a long time ago. "Your mom was alive then… Gabe… You were alive…"
"I'm alive now, dad. Look at me. I'm Viv. Vivian Fatema. Your daughter. Half mom, half you. I'm the same person I was."
His eyes shifted. She sensed he wanted to believe. She held his hand and squeezed it. She felt him squeezing back. "I want you to stay, dad."
"There's nothing for me here."
"I'm here."
"You don't love me, Viv. You're a robot."
His hand let go. "You're there… I don't know where. I have a lot to answer for, Viv. I pray. I pray every day, five times a day, sometimes more. I pray that God forgive you for what you did, forgive me for my part, forgive Gabriel... I wish I could stay, love, but… Everyone I love is on the other side."
It hurt her to say the next words: "It's not real, dad."
"Of course you'd say that." He turned his body away from her.
"Please, dad."
She listened to his breathing.
"I love you," she said.
"You don't love me, Viv. You're a robot."
She lowered her head against the bed. She kneeled for countless breaths. It took all her strength to stand up again.
Viv took her briefcase, pulled out her tablet. She stood tapping at the screen for some time. The clenching of her jaw felt like the old days.
"Before I go, I need you to sign something. It's a power of attorney for the house. We can't sell it without you."
"You're selling the house?"
She shrugged. "It's no use to a robot."
His bony finger signed the screen without reading it. She kissed his forehead goodbye.
"Viv?" She stopped. "Before you go, could you open the curtains?"
She did. Her last image of him was a frail old body gazing at the moving clouds.
On the hoverbus home, Viv turned against the window outside. She pressed the briefcase to her like a hug, her mechanical heart thumping against it. Every heartbeat brought a memory back of her biological life. "I should do this more…" She whispered to herself, not caring who might hear. The sunset turned violet.
You made him sign. Gabe sounded like triumph.
"I did."
You did the right thing.
"I know."
Let me see.
She pulled out her tablet and, with a touch, uploaded the file.
Where's my name? Gabe asked. I only see your name.
"I changed it."
What do you mean you "changed it"?
"I changed my mind last minute, Gabe. I didn't think to tell you."
That's funny, sis. Very funny.
"It's not funny at all, Gabe. It's dead serious. I have power of attorney. I'm going to bury him next to mom and Mary."
No… There's no way.
"It's my choice now."
I can't watch him go, Viv. I can't. Don't be selfish.
"I'll miss him." She felt a pain in her chest. "I'll miss him too." Her voice was different now. "But it's what he wanted."
Gabe left her. She heard nothing but her thoughts. Unbearable thoughts.
Viv turned to the darkening world outside. She found her reflection instead, her reflection in tears. She saw her father's eyes.
The largest ever seizure of fentanyl in the United States – 254 pounds of the white powder, enough to kill 1 in 3 Americans by overdose – was found under a shipment of cucumbers recently.
A policing approach alone is insufficient to take on the opioid crisis.
Those types of stories barely make the headlines any more, in part because illicit drugs are no longer just handsold by drug dealers; these sales have gone online. The neighborhood dealer faces the same evolving environment as other retailers and may soon go the way of Sears.
But opioids themselves are not going away. I could make an opioid purchase online in about 30 seconds and have it sent to my door, says Joe Smyser. The epidemiologist and president of The Public Good Projects isn't bragging, he's simply stating a fact about the opioid crisis that has struck the United States. The U.S Drug Enforcement Agency, social media companies, and some foreign governments have undertaken massive efforts to shut down sites selling illegal drugs, and they have gotten very good at it, shuttering most within a day of their opening.
But it's a Whac-A-Mole situation in which new ones pop up as quickly as older ones are closed; they are promoted through hashtags, social media networks, and ubiquitous email spam to lure visitors to a website or call a WhatsApp number to make a purchase. The online disruption by law enforcement has become simply another cost of doing business for drug sellers. Fentanyl, and similar analogues created to evade detection and the law, are at the center of it. Small amounts can be mixed with other "safer" opioids to get a high, and the growth of online sales have all contributed to the surge of opioid-related deaths: about 17,500 in 2006; 47,600 in 2017; and a projected 82,000 a year by 2025.
All of this has occurred even while authorities have been cracking down on the prescribing of opioids, and prescription-related deaths have declined. Clearly a policing approach alone is insufficient to take on the opioid crisis.
Building the Tools
The Public Good Projects (PGP), a nonprofit organization founded by concerned experts, was set up to better understand public health issues in this new online environment and better shape responses. The first step is to understand what people are hearing and the language they are using by monitoring social media and other forms of public communications. "We're collecting data from every publicly available media source that we can get our hands on. It's broadcast television data, it's radio, it's print newspapers and magazines. And then it's online data; it's online video, social media, blogs, websites," Smyser explains.
The purpose was to better understand the opioid crisis and find out if there were differences between affected rural and urban populations.
"Then our job is to create queries, create searches of all of that data so that we find what is the information that Americans are exposed to about a topic, and then what … Americans [are] sharing amongst themselves about that same topic."
He says it's the same thing business has been doing for years to monitor their "brand health" and be prepared for possible negative issues that might arise about their products and services. He believes PGP is the first group to use those tools for public health.
Looking At Opioids
PGP's work on opioids started with a contract from the Substance Abuse and Mental Health Administration (SAMHSA) through the National Science Foundation. The purpose was simply to better understand the opioid crisis in the United States and in particular find out if there were differences between affected rural and urban populations. A team of data scientists, public health professionals, and cultural anthropologists needed several months to sort out and organize the algorithms from the sheer volume of data.
Drug use is particularly rich in slang, where a specific drug or way of using it can be referred to in multiple ways in different towns and social groups. Traditional media often uses clinical terms, Twitter shorthand, and all of that has to be structured and integrated "so that it isn't just spitting out data that is gobbledygook and of no use to anyone," says Smyser.
The data they gather is both cumulative and in real time, tabulated and visually represented in constantly morphing hashtag and word clouds where the color and size of the word indicates the source and volume of its use.
Popular hashtags on Twitter relating to the opioid crisis.
(Credit: The Public Good Projects)
The visual presentation of data helps to understand what different groups are saying and how they are saying it. For example, compare the hashtag and word clouds. Younger people are more likely to use the hashtags of Twitter, while older people are more likely to use older forms of media, and that is reflected in their concerns and language in those clouds.
Popular words relating to the opioid crisis gathered from older forms of media.
(Credit: The Public Good Projects)
A Ping map shows the origin of messages, while a Spidey map shows the network of how messages are being forwarded and shared among people. These sets of data can be overlaid with zip code, census, and socioeconomic data to provide an even deeper sense of who is saying what. And when integrated together, they provide clues to topics and language that might best engage people in each niche.
A Ping map showing the origin of messages around the opioid crisis.
(Credit: The Public Good Projects)
Opioids Speak
One thing that quickly became apparent to PGP in monitoring the media is that "over half of the information that the American public is exposed to about opioids is a very distant policy debate," says Smyser.
It is political pronouncements in DC, the legal system going after pharmaceutical companies that promoted prescription opioids for pain relief (and more), or mandatory prison terms for offenders. Relatively little is about treatment, the impact on families and communities, and what people can do themselves. That is particularly important in light of another key finding: residents of "Trump-land," the rural areas that supported the president and are being ravaged by opioids, talk about the problem and solutions very differently from urban areas.
"In rural communities there is usually a huge emphasis on self-reliance, and we take care of each other; that's why we enjoy living here. We are a neighborhood, we come together and we fix our own problems," according to Smyser.
In contrast, urban communities tend to be more transient, less likely to live in multigenerational households and neighborhoods, and look to formal institutions rather than themselves for solutions. "The message that we're sending people is one where there is really no role whatsoever for self-efficacy...we're giving them nothing to do" to help solve the problem themselves, says Smyser. "In fact, I could argue it is reducing self-efficacy."
Residents of "Trump-land," the rural areas that supported the president and are being ravaged by opioids, talk about the problem and solutions very differently from urban areas.
The opioid crisis is complex and improving the situation will be too. Smyser believes a top-down policing approach alone will not work; it is better to provide front-line public health officers at the state and local level with more and current intelligence so they can respond in their communities.
"I think that would be enormously impactful. But right now, we just don't have that service." SAMHSA declined multiple requests to discuss this project paid for with federal money. A spokesman concluded with: "That project occurred under the previous administration, and we did not have a direct relationship with PGP. As a result, I am unable to comment on the project."
The Milken Institute Center for Public Health, a think tank that is working to find solutions to the opioid epidemic, had an upbeat response. Director Sabrina Spitaletta said, "PGP's work to provide real-time data that monitors topics of high concern in public health has been very helpful to many of the front-line organizations working to combat this crisis."