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.]
Today’s Focus on STEM Education Is Missing A Crucial Point
A student in a contemplative pose.
I once saw a fascinating TED talk on 3D printing. As I watched the presenter discuss the custom fabrication, not of plastic gears or figurines, but of living, implantable kidneys, I thought I was finally living in the world of Star Trek, and I experienced a flush of that eager, expectant enthusiasm I felt as a child looking toward the future. I looked at my current career and felt a rejuvenation of my commitment to teach young people the power of science.
The well-rounded education of human beings needs to include lessons learned both from a study of the physical world, and from a study of humanity.
Whether we are teachers or not, those of us who admire technology and innovation, and who wish to support progress, usually embrace the importance of educating the next generation of scientists and inventors. Growing a healthy technological civilization takes a lot of work, skill, and wisdom, and its continued health depends on future generations of competent thinkers. Thus, we may find it encouraging that there is currently an abundance of interest in STEM– the common acronym for the study of science, technology, engineering, and math.
But education is as challenging an endeavor as science itself. Educating youth--if we want to do it right--requires as much thought, work, and expertise as discovering a cure or pioneering regenerative medicine. Before we give our money, time, or support to any particular school or policy, let's give some thought to the details of the educational process.
A Well-Balanced Diet
For one thing, STEM education cannot stand in isolation. The well-rounded education of human beings needs to include lessons learned both from a study of the physical world, and from a study of humanity. This is especially true for the basic education of children, but it is true even for college students. And even for those in science and engineering, there are important lessons to be learned from the study of history, literature, and art.
Scientists have their own emotions and values, and also need financial support. The fruits of their labor ultimately benefit other people. How are we all to function together in our division-of-labor society, without some knowledge of the way societies work? How are we to fully thrive and enjoy life, without some understanding of ourselves, our motives, our moral values, and our relationships to others? STEM education needs the humanities as a partner. That flourishing civilization we dream of requires both technical competence and informed life-choices.
Think for Yourself (Even in Science)
Perhaps even more important than what is taught, is the subject of how things are taught. We want our children to learn the skill of thinking independently, but even in the sciences, we often fail completely to demonstrate how. Instead of teaching science as a thinking process, we indoctrinate, using the grand discoveries of the great scientists as our sacred texts. But consider the words of Isaac Newton himself, regarding rote learning:
A Vulgar Mechanick can practice what he has been taught or seen done, but if he is in an error he knows not how to find it out and correct it, and if you put him out of his road he is at a stand. Whereas he that is able to reason nimbly and judiciously about figure, force, and motion, is never at rest till he gets over every rub.
What's the point of all this formal schooling in the first place? Is it, as many of the proponents of STEM education might argue, to train students for a "good" career?
If our goal is to help students "reason nimbly" about the world around them, as the great scientists themselves did, are we succeeding? When we "teach" middle school students about DNA or cellular respiration by presenting as our only supporting evidence cartoon pictures, are we showing students a process of discovery based on evidence and hard work? Or are we just training them to memorize and repeat what the authorities say?
A useful education needs to give students the skill of following a line of reasoning, of asking rational questions, and of chewing things through in their minds--even if we regard the material as beyond question. Besides feeding students a well-balanced diet of knowledge, healthy schooling needs to teach them to digest this information thoroughly.
Thinking Training
Now step back for a moment and think about the purpose of education. What's the point of all this formal schooling in the first place? Is it, as many of the proponents of STEM education might argue, to train students for a "good" career? That view may have some validity for young adults, who are beginning to choose electives in favored subjects, and have started to choose a direction for their career.
But for the basic education of children, this way of thinking is presumptuous and disastrous. I would argue that the central purpose of a basic education is not to teach children how to perform this or that particular skill, but simply to teach them to think clearly. We should not be aiming to provide job training, but thinking training. We should be helping children learn how to "reason nimbly" about the world around them, and breathing life into their thinking processes, by which they will grapple with the events and circumstances of their lives.
So as we admire innovation, dream of a wonderful future, and attempt to nurture the next generation of scientists and engineers, instead of obsessing over STEM education, let us focus on rational education. Let's worry about showing children how to think--about all the important things in life. Let's give them the basic facts of human existence -- physical and humanitarian -- and show them how to fluently and logically understand them.
Some students will become the next generation of creators, and some will follow other careers, but together -- if they are educated properly -- they will continue to grow their inheritance, and to keep our civilization healthy and flourishing, in body and in mind.
Do New Tools Need New Ethics?
Symbols of countries on a chessboard.
Scarcely a week goes by without the announcement of another breakthrough owing to advancing biotechnology. Recent examples include the use of gene editing tools to successfully alter human embryos or clone monkeys; new immunotherapy-based treatments offering longer lives or even potential cures for previously deadly cancers; and the creation of genetically altered mosquitos using "gene drives" to quickly introduce changes into the population in an ecosystem and alter the capacity to carry disease.
The environment for conducting science is dramatically different today than it was in the 1970s, 80s, or even the early 2000s.
Each of these examples puts pressure on current policy guidelines and approaches, some existing since the late 1970s, which were created to help guide the introduction of controversial new life sciences technologies. But do the policies that made sense decades ago continue to make sense today, or do the tools created during different eras in science demand new ethics guidelines and policies?
Advances in biotechnology aren't new of course, and in fact have been the hallmark of science since the creation of the modern U.S. National Institutes of Health in the 1940s and similar government agencies elsewhere. Funding agencies focused on health sciences research with the hope of creating breakthroughs in human health, and along the way, basic science discoveries led to the creation of new scientific tools that offered the ability to approach life, death, and disease in fundamentally new ways.
For example, take the discovery in the 1970s of the "chemical scissors" in living cells called restriction enzymes, which could be controlled and used to introduce cuts at predictable locations in a strand of DNA. This led to the creation of tools that for the first time allowed for genetic modification of any organism with DNA, which meant bacteria, plants, animals, and even humans could in theory have harmful mutations repaired, but also that changes could be made to alter or even add genetic traits, with potentially ominous implications.
The scientists involved in that early research convened a small conference to discuss not only the science, but how to responsibly control its potential uses and their implications. The meeting became known as the Asilomar Conference for the meeting center where it was held, and is often noted as the prime example of the scientific community policing itself. While the Asilomar recommendations were not sufficient from a policy standpoint, they offered a blueprint on which policies could be based and presented a model of the scientific community setting responsible controls for itself.
But the environment for conducting science changed over the succeeding decades and it is dramatically different today than it was in the 1970s, 80s, or even the early 2000s. The regime for oversight and regulation that has provided controls for the introduction of so-called "gene therapy" in humans starting in the mid-1970s is beginning to show signs of fraying. The vast majority of such research was performed in the U.S., U.K., and Europe, where policies were largely harmonized. But as the tools for manipulating humans at the molecular level advanced, they also became more reliable and more precise, as well as cheaper and easier to use—think CRISPR—and therefore more accessible to more people in many more countries, many without clear oversight or policies laying out responsible controls.
There is no precedent for global-scale science policy, though that is exactly what this moment seems to demand.
As if to make the point through news headlines, scientists in China announced in 2017 that they had attempted to perform gene editing on in vitro human embryos to repair an inherited mutation for beta thalassemia--research that would not be permitted in the U.S. and most European countries and at the time was also banned in the U.K. Similarly, specialists from a reproductive medicine clinic in the U.S. announced in 2016 that they had performed a highly controversial reproductive technology by which DNA from two women is combined (so-called "three parent babies"), in a satellite clinic they had opened in Mexico to avoid existing prohibitions on the technique passed by the U.S. Congress in 2015.
In both cases, genetic changes were introduced into human embryos that if successful would lead to the birth of a child with genetically modified germline cells—the sperm in boys or eggs in girls—with those genetic changes passed on to all future generations of related offspring. Those are just two very recent examples, and it doesn't require much imagination to predict the list of controversial possible applications of advancing biotechnologies: attempts at genetic augmentation or even cloning in humans, and alterations of the natural environment with genetically engineered mosquitoes or other insects in areas with endemic disease. In fact, as soon as this month, scientists in Africa may release genetically modified mosquitoes for the first time.
The technical barriers are falling at a dramatic pace, but policy hasn't kept up, both in terms of what controls make sense and how to address what is an increasingly global challenge. There is no precedent for global-scale science policy, though that is exactly what this moment seems to demand. Mechanisms for policy at global scale are limited–-think UN declarations, signatory countries, and sometimes international treaties, but all are slow, cumbersome and have limited track records of success.
But not all the news is bad. There are ongoing efforts at international discussion, such as an international summit on human genome editing convened in 2015 by the National Academies of Sciences and Medicine (U.S.), Royal Academy (U.K.), and Chinese Academy of Sciences (China), a follow-on international consensus committee whose report was issued in 2017, and an upcoming 2nd international summit in Hong Kong in November this year.
These efforts need to continue to focus less on common regulatory policies, which will be elusive if not impossible to create and implement, but on common ground for the principles that ought to guide country-level rules. Such principles might include those from the list proposed by the international consensus committee, including transparency, due care, responsible science adhering to professional norms, promoting wellbeing of those affected, and transnational cooperation. Work to create a set of shared norms is ongoing and worth continued effort as the relevant stakeholders attempt to navigate what can only be called a brave new world.