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.]
Short-Term Suspended Animation for Humans Is Coming Soon
A man gasps for air through deep ice, in a symbolic representation of human hibernation through induced hypothermia.
At 1 a.m., Tony B. is flown to a shock trauma center of a university hospital. Five minutes earlier, he was picked up unconscious with no blood pressure, having suffered multiple gunshot wounds with severe blood loss. Standard measures alone would not have saved his life, but on the helicopter he was injected with ice-cold fluids intravenously to begin cooling him from the inside, and given special drugs to protect his heart and brain.
Suspended animation is not routine yet, but it's going through clinical trials at the University of Maryland and the University of Pittsburgh.
A surgeon accesses Tony's aorta, allowing his body to be flushed with larger amounts of cold fluids, thereby inducing profound hypothermia -- a body temperature below 10° C (50° F). This is suspended animation, a form of human hibernation, but officially the procedure is called Emergency Preservation and Resuscitation for Cardiac Arrest from Trauma (EPR-CAT).
This chilly state, which constitutes the preservation component of Tony's care, continues for an hour as surgeons repair injuries and connect his circulation to cardiopulmonary bypass (CPB). This allows blood to move through the brain delivering oxygen at low doses appropriate for the sharply reduced metabolic rate that comes with the hypothermia, without depending on the heart and lungs. CPB also enables controlled, gradual re-warming of Tony's body as fluid and appropriate amounts of red blood cells are transfused into him.
After another hour or so, Tony's body temperature reaches the range of 32-34° C (~90-93° F), called mild hypothermia. Having begun the fluid resuscitation process already, the team stops warming Tony, switches his circulation from CPB to his own heart and lungs, and begins cardiac resuscitation with electrical jolts to his heart. With his blood pressure stable, his heart rate slow but appropriate for the mild hypothermia, Tony is maintained at this intermediate temperature for 24 hours; this last step is already standard practice in treatment of people who suffer cardiac arrest without blood loss trauma.
The purpose is to prevent brain damage that might come with the rapid influx of too much oxygen, just as a feast would mean death to a starvation victim. After he is warmed to a normal temperature of 37° C (~99° F), Tony is awakened and ultimately recovers with no brain damage.
Tony's case is fictional; EPR-CAT is not routine yet, but it's going through clinical trials at the University of Maryland and the University of Pittsburgh, under the direction of trauma surgeon Dr. Samuel Tisherman, who spent many years developing the procedure in dogs and pigs. In such cases, patients undergo suspended animation for a couple of hours at most, but other treatments are showing promise in laboratory animals, like the use of hydrogen sulfide gas without active cooling to induce suspended animation in mice. Such interventions could ultimately fuse with EPR-CAT, sending the new technology further into what's still the realm of science fiction – at least for now.
Consider the scenario of a 5-year-old girl diagnosed with a progressive, incurable, terminal disease.
Experts say that extended suspended animation – cooling patients in a stable state for months or years -- could be possible at some point, although no one can predict when the technology will be clinical reality, since hydrogen sulfide and other chemical tactics would have to move into clinical use in humans and prove safe and effective in combination with EPR-CAT, or with a similar cooling approach.
How Could Long-Term Suspended Animation Impact Humanity?
Consider the scenario of a 5-year-old girl diagnosed with a progressive, incurable, terminal disease. Since available treatments would only lengthen the projected survival by a year, she is placed into suspended animation. She is revived partially every few years, as new treatments become available that can have a major impact on her disease. After 35 years of this, she is revived completely as treatments are finally adequate to cure her condition, but biologically she has aged only a few months. Physically, she is normal now, though her parents are in their seventies, and her siblings are grown and married.
Such hypothetical scenarios raise many issues: Where will the resources come from to take care of patients for that long? Who will pay? And how will patients adapt when they emerge into a completely different world?
"Heavy resource utilization is a factor if you've got people hibernating for years or decades," says Bradford Winters, an associate professor of anesthesiology and critical care medicine, and assistant professor of neurological surgery at Johns Hopkins.
Conceivably, special high-tech facilities with robots and artificial intelligence watching over the hibernators might solve the resource issue, but even then, Winters notes that long-term hibernation would entail major disparities between the wealthy and poor. "And then there is the psychological effect of being disconnected from one's family and society for a generation or more," he says. "What happens to that 5-year-old waking to her retired parents and married siblings? Will her younger sister adopt her? What would that be like?"
Probably better than dying is one answer.
Back on Earth, human hibernation would raise daunting policy questions that may take many years to resolve.
Outside of medicine, one application of human hibernation that has intrigued generations of science fiction writers is in long-duration space travel. During a voyage lasting years or decades, space explorers or colonists not only could avoid long periods of potential boredom, but also the aging process. Considering that the alternative to "sleeper ships" would be multi-generation starships so large that they'd be like small worlds, human hibernation in spaceflight could become an enabling technology for interstellar flight.
Big Questions: It's Not Too Early to Ask
Back on Earth, the daunting policy questions may take many years to resolve. Society ought to be aware of them now, before human hibernation technology outpaces its dramatic implications.
"Our current framework of ethical and legal regulation is adequate for cases like the gunshot victim who is chilled deeply for a few hours. Short-term cryopreservation is currently part of the continuum of care," notes David N. Hoffman, a clinical ethicist and health care attorney who teaches at Columbia University, and at Yeshiva University's Benjamin N. Cardozo School of Law and Albert Einstein College of Medicine.
"But we'll need a new framework when there's a capability to cryopreserve people for many years and still bring them back. There's also a legal-ethical issue involving the parties that decide to put the person into hibernation versus the patient wishes in terms of what risk benefit ratio they would accept, and who is responsible for the expense and burdens associated with cases that don't turn out just right?"
To begin thinking about practical solutions, Hoffman characterizes long-term human hibernation as an extension of the ethics of cyro-preserved embryos that are held for potential parents, often for long periods of time. But the human hibernation issue is much more complex.
"The ability of the custodian and patient to enter into a meaningful and beneficial arrangement is fraught, because medical advances necessary to address the person's illness or injury are -- by definition -- unknown," says Hoffman. "It means that you need a third party, a surrogate, to act on opportunities that the patient could never have contemplated."
Such multigenerational considerations might become more manageable, of course, in an era when gene therapy, bionic parts, and genetically engineered replacement organs enable dramatic life extension. But if people will be living for centuries regardless of whether or not they hibernate, then developing the medical technology may be the least of the challenges.
The Mind-Blowing Promise of Neural Implants
A patient with an implanted neural device that connects to a prosthetic arm can sense, while blindfolded, which of the mechanical fingers are being touched.
You may not have heard of DARPA, the research branch of the Pentagon. But you're definitely familiar with some of the technology it has pioneered, like the Internet, Siri, and handheld GPS.
"Now we're going to try to go from this proof-of-concept all the way to commercial technologies that can powerfully affect patients' lives."
Last week in National Harbor, Maryland, DARPA celebrated its 60th anniversary by showcasing its latest breakthroughs and emerging research programs, one of which centers around using neurotechnology to enhance the capabilities of the human brain. This technology is initially being developed to help warfighters and veterans, but its success could have enormous implications for civilian patients and, eventually, mainstream consumers.
The field is moving ahead rapidly. Fifteen years ago, a monkey named Aurora used a brain-machine interface to control a cursor on a computer screen. In 2014, DARPA's mind-controlled prosthetic arm for amputees won approval from the Food and Drug Administration.
Since then, DARPA has continued to push neurotechnology to new heights. Here are three of their research programs that are showing promise in early human testing:
1) A NEURAL IMPLANT HELP MANAGE PSYCHIATRIC ILLNESS
More than 2.2 million veterans and 44 million civilians are living with some form of psychiatric illness, and medications don't work for everyone. DARPA set out to create new options for people living with debilitating anxiety, depression, and PTSD.
"We can get somebody back to normal. It's a whole new set of tools for physicians," said Justin Sanchez, Director of the Biological Technologies Office at DARPA.
He told the audience about a woman living with both epilepsy and extreme anxiety, who has a direct neural interface that reads her brain's signals in real time and can be modulated with stimulation. He shared a recent video of her testing the device:
"Now we're going to try to go from this proof-of-concept all the way to commercial technologies that can powerfully affect patients' lives," Sanchez said.
2) A NEURAL IMPLANT TO HELP IMPROVE MEMORY
"We are right at the cusp" of improving memory recall with direct neural interfaces, Sanchez said.
All day long, our brains shift between poor and good memory states. A brain-computer interface can read the signals of populations of neurons in the lateral temporal cortex. The device continuously monitors the state of the brain and delivers stimulation within a fraction of a second after detecting a poor memory state, to improve the person's memory performance.
The improved memory lasts only seconds, so the system "delivers stimulation as needed in a closed loop to keep the performance in a good state, because of this natural variability of performance," said Dan Rizzuto, founder of NiaTherapeutics, whose technology was developed with support from DARPA and the United States BRAIN Initiative.
Check out this recently shot video of a patient testing the device, which Sanchez called "a breakthrough moment":
About 400 patients have been tested with this technology so far. In a pilot study whose data have not yet been published, patients with traumatic brain injury showed improvement in recall of around 28 percent, according to Rizzuto.
He estimates that potential FDA approval of the device for patients with traumatic brain injury is still 7 to 8 years away. The technology holds the potential to help many other kinds of patients as well.
"We believe this device could also be used to treat Alzheimer's because it's not specific to any brain pathology but based on a deep understanding of the way human memory works," Rizzuto said.
3) A NEURAL IMPLANT TO REVOLUTIONIZE PROSTHETICS FOR WARFIGHTERS AND VETERANS
Since 2006, DARPA has run a program to revolutionize prosthetics. The latest advances allow amputees to actually feel again with their bionic limbs.
Sensors in a prosthetic hand relay information to an interface in the brain that allows the person to detect which of their "fingers" are being touched, while their eyes are closed:
WHAT COMES NEXT?
DARPA is now turning its attention to non-surgical, non-invasive neurotechnology. Researchers hope to use advanced sensor technology to detect signals from neurons without putting any electrodes directly inside the brain. Under the direction of program manager Dr. Al Emondi, the N³ program is about to launch soon and plans to run for four or five years.
"We haven't even scratched the surface of what a human brain's capability is," said Dr. Geoffrey Ling, the Founding Director of the Biological Technologies Office. "When we can make this a non-invasive consumer technology, this will explode. It will take on a life of its own."
Then, inevitably, the hard questions will follow.
As Sanchez put it: "Will society consider some form of neural enhancement a personal choice like braces? Could there be a disturbing gap for people who have neurotech and those who don't? We must come together and all think over the horizon. How the story unfolds ultimately depends on all of us."
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.