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.]
These Sisters May Change the Way You Think About Dying
For five weeks, Anita Freeman watched her sister writhe in pain. The colon cancer diagnosed four years earlier became metastatic.
"I still wouldn't wish that ending on my worst enemy."
At this tormenting juncture, her 66-year-old sister, Elizabeth Martin, wanted to die comfortably in her sleep. But doctors wouldn't help fulfill that final wish.
"It haunts me," Freeman, 74, who lives in Long Beach, California, says in recalling the prolonged agony. Her sister "was breaking out of the house and running in her pajamas down the sidewalk, screaming, 'Help me. Help me.' She just went into a total panic."
Finally, a post-acute care center offered pentobarbital, a sedative that induced a state of unconsciousness, but only after an empathetic palliative care doctor called and insisted on ending the inhumane suffering. "We even had to fight the owners of the facility to get them to agree to the recommendations," Freeman says, describing it as "the only option we had at that time; I still wouldn't wish that ending on my worst enemy."
Her sister died a week later, in 2014. That was two years before California's medical aid-in-dying law took effect, making doctors less reliant on palliative sedation to peacefully end unbearable suffering for terminally ill patients. Now, Freeman volunteers for Compassion & Choices, a national grassroots organization based in Portland, Oregon, that advocates for expanding end-of-life options.
Palliative sedation involves medicating a terminally ill patient into lowered awareness or unconsciousness in order to relieve otherwise intractable suffering at the end of life. It is not intended to cause death, which occurs due to the patient's underlying disease.
In contrast, euthanasia involves directly and deliberately ending a patient's life. Euthanasia is legal only in Canada and some European countries and requires a health care professional to administer the medication. In the United States, laws in seven states and Washington, D.C. give terminally ill patients the option to obtain prescription medication they can take to die peacefully in their sleep, but they must be able to self-adminster it.
Recently, palliative sedation has been gaining more acceptance among medical professionals as an occasional means to relieve suffering, even if it may advance the time of death, as some clinicians believe. However, studies have found no evidence of this claim. Many doctors and bioethicists emphasize that intent is what distinguishes palliative sedation from euthanasia. Others disagree. It's common for controversy to swirl around when and how to apply this practice.
Elizabeth Martin with her sister Anita Freeman in happier times, before metastatic cancer caused her tremendous suffering at the end of her life.
(Courtesy Anita Freeman)
"Intent is everything in ethics. The rigor and protocols we have around palliative sedation therapy also speaks to it being an intervention directed to ease refractory distress," says Martha Twaddle, medical director of palliative medicine and supportive care at Northwestern University's Lake Forest Hospital in Lake Forest, Illinois.
Palliative sedation should be considered only when pain, shortness of breath, and other unbearable symptoms don't respond to conventional treatments. Left to his or her own devices, a patient in this predicament could become restless, Twaddle says, noting that "agitated delirium is a horrible symptom for a family to witness."
At other times, "we don't want to be too quick to sedate," particularly in cases of purely "existential distress"—when a patient experiences anticipatory grief around "saying goodbye" to loved ones, she explains. "We want to be sure we're applying the right therapy for the problem."
Encouraging patients to reconcile with their kin may help them find inner peace. Nonmedical interventions worth exploring include quieting the environment and adjusting lighting to simulate day and night, Twaddle says.
Music-thanatology also can have a calming effect. It is live, prescriptive music, mainly employing the harp or voice, tailored to the patient's physiological needs by tuning into vital signs such as heart rate, respiration, and temperature, according to the Music-Thanatology Association International.
"When we integrated this therapeutic modality in 2003, our need for using palliative sedation therapy dropped 75 percent and has remained low ever since," Twaddle observes. "We have this as part of our care for treating refractory symptoms."
"If palliative sedation is being employed properly with the right patient, it should not hasten death."
Ethical concerns surrounding euthanasia often revolve around the term "terminal sedation," which "can entail a physician deciding that the patient is a lost cause—incurable medically and in substantial pain that cannot adequately be relieved," says John Kilner, professor and director of the bioethics programs at Trinity International University in Deerfield, Illinois.
By halting sedation at reasonable intervals, the care team can determine whether significant untreatable pain persists. Periodic discontinuation serves as "evidence that the physician is still working to restore the patient rather than merely to usher the patient painlessly into death," Kilner explains. "Indeed, sometimes after a period of unconsciousness, with the body relieved of unceasing pain, the body can recover enough to make the pain treatable."
The medications for palliative sedation "are tried and true sedatives that we've had for a long time, for many years, so they're predictable," says Joe Rotella, chief medical officer at the American Academy of Hospice and Palliative Medicine.
Some patients prefer to keep their eyes open and remain conscious to answer by name, while others tell their doctors in advance that they want to be more heavily sedated while receiving medications to manage pain and other symptoms. "We adjust the dosage until the patient is sleeping at a desired level of sedation," Rotella says.
Sedation is an intrinsic side effect of most medications prescribed to control severe symptoms in terminally ill patients. In general, most people die in a sleepy state, except for instances of sudden, dramatic death resulting from a major heart attack or stroke, says Ryan R. Nash, a palliative medicine physician and director of The Ohio State University Center for Bioethics in Columbus.
"Using those medications to treat pain or shortness of breath is not palliative sedation," Nash says. In addition, providing supplemental nutrition and hydration in situations where death is imminent—with a prognosis limited to hours or days—generally doesn't help prolong life. "If palliative sedation is being employed properly with the right patient," he adds, "it should not hasten death."
Nonetheless, hospice nurses sometimes feel morally distressed over carrying out palliative sedation. Implementing protocols at health systems would help guide them and alleviate some of their concerns, says Gregg VandeKieft, medical director for palliative care at Providence St. Joseph Health's Southwest Washington Region in Olympia, Washington. "It creates guardrails by sort of standardizing and normalizing things," he says.
"Our goal is to restore our patient. It's never to take their life."
The concept of proportionality weighs heavily in the process of palliative sedation. But sometimes substantial doses are necessary. For instance, an opioid-tolerant patient recently needed an unusually large amount of medication to control symptoms. She was in a state of illness-induced confusion and pain, says David E. Smith, a palliative medicine physician at Baptist Health Supportive Care in Little Rock, Arkansas.
Still, "we are parsimonious in what we do. We only use as much therapeutic force as necessary to achieve our goals," Smith says. "Our goal is to restore our patient. It's never to take their life."
Steven Pinker: Data Shows That Life Today Is Better Than Ever
The government shutdown. A volatile stock market. Climate change.
It's so easy to get discouraged by the latest headlines, argues Steven Pinker, that we lose sight of the bigger picture: life today is actually improving.
"To appreciate the world, we've got to look at numbers and trends."
Pinker, a cognitive psychologist from Harvard, says in his book "Enlightenment Now" that we're living at the greatest moment of progress in history, thanks to reason, science, and humanism. But today, he says, these ideals are under-appreciated, and we ignore them at our peril.
So he set out to provide a vigorous moral defense of the values of the Enlightenment by examining the evidence for their effectiveness. Across a range of categories from happiness and health to peace and safety, Pinker examines the data and reassures readers that this is a pretty great time to be alive. As we kick off the new year, he's hopeful that our embrace of science and reason will lead to an even more prosperous future. But political and cultural hurdles must still be overcome before the heroic story of human progress can continue to unfold.
Pinker spoke with our Editor-in-Chief Kira Peikoff in advance of the book's paperback release, which hits stores next Tuesday. This interview has been edited and condensed for clarity.
One anecdote you describe in the book was particularly striking: how the public reacted when the polio vaccine was announced. People took the day off work to celebrate, they smiled at each other in the streets, they offered to throw parades. Today, it's hard to imagine such prevalent enthusiasm for a new advance. How can we bring back a culture of respect and gratitude for science?
That's such a good question. And I wish I knew the answer. My contribution is just to remind people of how much progress we've made. It's easy to ignore if your view of the world comes from headlines, but there are some built-in biases in journalism that we have to counteract. Most things that happen all of a sudden are bad things: wars break out, terrorists attack, rampage shootings occur, whereas a lot of the things that make us better off creep up by stealth. But we have to become better aware of them.
It's unlikely that we're going to have replications of the great Salk event, which happened on a particular day, but I think we have to take lessons from cognitive science, from the work of people like Daniel Kahneman and Amos Tversky, showing how misled we can be by images and narratives and that to appreciate the world, we've got to look at numbers and trends.
The cover of "Enlightenment Now," which comes out in paperback next week.
You mention that the President's Bioethics Council under Bush was appointed to deal with "the looming threat of biomedical advances." Do you think that professional bioethicists are more of a hindrance than a help when it comes to creating truly enlightened science policy?
I do. I think that there are some problems in the culture of bioethics. And of course, I would not argue against that the concept of bioethics. Obviously, we have to do biomedical research and applications conscientiously and ethically. But the field called Bioethics tends to specialize in exotic thought experiments that tend to imagine the worst possible things that can happen, and often mire research in red tape that results in a net decrease in human welfare, whereas the goal of bioethics should be to enhance human welfare.
In an op-ed that I published in the Boston Globe a few years ago, I said, deliberately provocatively, that the main moral imperative of bioethics is to get out of the way since there's so much suffering that humans endure from degenerative diseases, from cancer, from heart disease and stroke. The potential for increasing happiness and well-being from biomedical research is just stupendous. So before we start to drag out Brave New World for the umpteenth time, or compare every advance in genetics to the Nazis, we should remember the costs of people dying prematurely from postponing advances in biomedical research.
Later in the book, you mention how much more efficient the production of food has become due to high-tech agriculture. But so many people today are leery of advances in the food industry, like GMOs. And we will have to feed 10 billion people in 2050. Are you concerned about how we will meet that challenge?
Yes, I think anyone has to be, and all the more reason we should be clear about what is simultaneously best for humans and for the planet, which is to grow as much food on this planet as possible. That ideal of density -- the less farmland the better -- runs up against the ideal of the organic farming and natural farming, which use lots of land. So genetically modified organisms and precision agriculture of the kind that is sometimes associated with Israel -- putting every last drop of water to use, delivering it when it's needed, using the minimum amount of fertilizer -- all of these technologically driven developments are going to be necessary to meet that need.
"The potential for increasing happiness and well-being from biomedical research is just stupendous."
You also mention "sustainability" as this big buzz word that you say is based on a flawed assumption that we will run out of resources rather than pivot to ingenious alternatives. What's the most important thing we can do as a culture to encourage innovation?
It has to be an ideal. We have restore it as what we need to encourage, to glorify in order to meet the needs of humanity. Governments have to play a role because lots of innovation is just too risky with benefits that are too widely diffuse for private companies and individuals to pursue. International cooperation has to play a role. And also, we need to change our environmental philosophy from a reflexive rejection of technology to an acknowledgement that it will be technology that is our best hope for staving off environmental problems.
And yet innovation and technology today are so often viewed fearfully by the public -- just look at AI and gene editing. If we need science and technology to solve our biggest challenges, how do we overcome this disconnect?
Part of it is simply making the argument that is challenging the ideology and untested assumptions behind traditional Greenism. Also, on the part of the promoters of technology themselves, it's crucial to make it not just clear, but to make it a reality that technology is going to be deployed to enhance human welfare.
That of course means an acknowledgement of the possible harms and limitations of technology. The fact that the first widely used genetically modified crop was soybeans that were resistant to herbicides, to Roundup -- that was at the very least a public relations disaster for genetically modified organisms. As opposed to say, highlighting crops that require less insecticide, less chemical fertilizers, less water level. The poster children for technology should really be cases that quite obviously benefit humanity.
"One of the surprises from 'Enlightenment Now' was how much moral progress depends on economic progress."
Finally, what is one emerging innovation that you're excited about for 2019?
I would say 4th generation nuclear power. Small modular reactors. Because everything depends on energy. For poor countries to get rich, they are going to have to consume far more energy than they do now and if they do it via fossil fuels, especially coal, that could spell disaster. Zero-carbon energy will allow poor countries to get richer -- and rich countries to stay rich without catastrophic environmental damage.
One of the surprises from "Enlightenment Now" was how much moral progress depends on economic progress. Rich countries not only allow the citizens to have cool gadgets, but all kinds of good things happen when a country gets rich, like Norway, Netherlands, Switzerland. Countries that are richer on average are more democratic, are less likely that to fight wars, are more feminist, are more environmentally conscientious, are smarter -- that is, they have a greater increase in IQ. So anything that makes a country get richer, and that's going to include a bunch of energy, is going to make humanity better off.
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.