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.]
The Friday Five: A new blood test to detect Alzheimer's
The Friday Five covers five stories in research that you may have missed this week. There are plenty of controversies and troubling ethical issues in science – and we get into many of them in our online magazine – but this news roundup focuses on scientific creativity and progress to give you a therapeutic dose of inspiration headed into the weekend.
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Here are the promising studies covered in this week's Friday Five:
- A blood test to detect Alzheimer's
- War vets can take their psychologist wherever they go
- Does intermittent fasting affect circadian rhythms?
- A new year's resolution for living longer
- 3-D printed eyes?
Staying well in the 21st century is like playing a game of chess
This article originally appeared in One Health/One Planet, a single-issue magazine that explores how climate change and other environmental shifts are increasing vulnerabilities to infectious diseases by land and by sea. The magazine probes how scientists are making progress with leaders in other fields toward solutions that embrace diverse perspectives and the interconnectedness of all lifeforms and the planet.
On July 30, 1999, the Centers for Disease Control and Prevention published a report comparing data on the control of infectious disease from the beginning of the 20th century to the end. The data showed that deaths from infectious diseases declined markedly. In the early 1900s, pneumonia, tuberculosis and diarrheal diseases were the three leading killers, accounting for one-third of total deaths in the U.S.—with 40 percent being children under five.
Mass vaccinations, the discovery of antibiotics and overall sanitation and hygiene measures eventually eradicated smallpox, beat down polio, cured cholera, nearly rid the world of tuberculosis and extended the U.S. life expectancy by 25 years. By 1997, there was a shift in population health in the U.S. such that cancer, diabetes and heart disease were now the leading causes of death.
The control of infectious diseases is considered to be one of the “10 Great Public Health Achievements.” Yet on the brink of the 21st century, new trouble was already brewing. Hospitals were seeing periodic cases of antibiotic-resistant infections. Novel viruses, or those that previously didn’t afflict humans, began to emerge, causing outbreaks of West Nile, SARS, MERS or swine flu.In the years that followed, tuberculosis made a comeback, at least in certain parts of the world. What we didn’t take into account was the very concept of evolution: as we built better protections, our enemies eventually boosted their attacking prowess, so soon enough we found ourselves on the defensive once again.
At the same time, new, previously unknown or extremely rare disorders began to rise, such as autoimmune or genetic conditions. Two decades later, scientists began thinking about health differently—not as a static achievement guaranteed to last, but as something dynamic and constantly changing—and sometimes, for the worse.
What emerged since then is a different paradigm that makes our interactions with the microbial world more like a biological chess match, says Victoria McGovern, a biochemist and program officer for the Burroughs Wellcome Fund’s Infectious Disease and Population Sciences Program. In this chess game, humans may make a clever strategic move, which could involve creating a new vaccine or a potent antibiotic, but that advantage is fleeting. At some point, the organisms we are up against could respond with a move of their own—such as developing resistance to medication or genetic mutations that attack our bodies. Simply eradicating the “opponent,” or the pathogenic microbes, as efficiently as possible isn’t enough to keep humans healthy long-term.
Instead, scientists should focus on studying the complexity of interactions between humans and their pathogens. “We need to better understand the lifestyles of things that afflict us,” McGovern says. “The solutions are going to be in understanding various parts of their biology so we can influence how they behave around our systems.”
Genetics and cell biology, combined with imaging techniques that allow one to see tissues and individual cells in actions, will enable scientists to define and quantify what it means to be healthy at the molecular level.
What is being proposed will require a pivot to basic biology and other disciplines that have suffered from lack of research funding in recent years. Yet, according to McGovern, the research teams of funded proposals are answering bigger questions. “We look for people exploring questions about hosts and pathogens, and what happens when they touch, but we’re also looking for people with big ideas,” she says. For example, if one specific infection causes a chain of pathological events in the body, can other infections cause them too? And if we find a way to break that chain for one pathogen, can we play the same trick on another? “We really want to see people thinking of not just one experiment but about big implications of their work,” McGovern says.
Jonah Cool, a cell biologist, geneticist and science officer at the Chan Zuckerberg Initiative, says that it’s necessary to define what constitutes a healthy organism and how it overcomes infections or environmental assaults, such as pollution from forest fires or toxins from industrial smokestacks. An organism that catches a disease isn’t necessarily an unhealthy one, as long as it fights it off successfully—an ability that arises from the complex interplay of its genes, the immune system, age, stress levels and other factors. Modern science allows many of these factors to be measured, recorded and compared. “We need a data-driven, deep-phenotyping approach to defining healthy biological systems and their responses to insults—which can be infectious disease or environmental exposures—and their ability to navigate their way through that space,” Cool says.
Genetics and cell biology, combined with imaging techniques that allow one to see tissues and individual cells in actions, will enable scientists to define and quantify what it means to be healthy at the molecular level. “As a geneticist and cell biologist, I believe in all these molecular underpinnings and how they arise in phenotypic differences in cells, genes, proteins—and how their combinations form complex cellular states,” Cool says.
Julie Graves, a physician, public health consultant, former adjunct professor of management, policy and community health at the University of Texas Health Science Center in Houston, stresses the necessity of nutritious diets. According to the Rockefeller Food Initiative, “poor diet is the leading risk factor for disease, disability and premature death in the majority of countries around the world.” Adequate nutrition is critical for maintaining human health and life. Yet, Western diets are often low in essential nutrients, high in calories and heavy on processed foods. Overconsumption of these foods has contributed to high rates of obesity and chronic disease in the U.S. In fact, more than half of American adults have at least one chronic disease, and 27 percent have more than one—which increases vulnerability to COVID-19 infections, according to the 2018 National Health Interview Survey.
Further, the contamination of our food supply with various agricultural and industrial toxins—petrochemicals, pesticides, PFAS and others—has implications for morbidity, mortality, and overall quality of life. “These chemicals are insidiously in everything, including our bodies,” Graves says—and they are interfering with our normal biological functions. “We need to stop how we manufacture food,” she adds, and rid our sustenance of these contaminants.
According to the Humane Society of the United States, factory farms result in nearly 40 percent of emissions of methane. Concentrated animal feeding operations or CAFOs may serve as breeding grounds for pandemics, scientists warn, so humans should research better ways to raise and treat livestock. Diego Rose, a professor of food and nutrition policy at Tulane University School of Public Health & Tropical Medicine, and his colleagues found that “20 percent of Americans’ diets account for about 45 percent of the environmental impacts [that come from food].” A subsequent study explored the impacts of specific foods and found that substituting beef for chicken lowers an individual’s carbon footprint by nearly 50 percent, with water usage decreased by 30 percent. Notably, however, eating too much red meat has been associated with a variety of illnesses.
In some communities, the option to swap food types is limited or impossible. For example, “many populations live in relative food deserts where there’s not a local grocery store that has any fresh produce,” says Louis Muglia, the president and CEO of Burroughs Wellcome. Individuals in these communities suffer from an insufficient intake of beneficial macronutrients, and they’re “probably being exposed to phenols and other toxins that are in the packaging.” An equitable, sustainable and nutritious food supply will be vital to humanity’s wellbeing in the era of climate change, unpredictable weather and spillover events.
A recent report by See Change Institute and the Climate Mental Health Network showed that people who are experiencing socioeconomic inequalities, including many people of color, contribute the least to climate change, yet they are impacted the most. For example, people in low-income communities are disproportionately exposed to vehicle emissions, Muglia says. Through its Climate Change and Human Health Seed Grants program, Burroughs Wellcome funds research that aims to understand how various factors related to climate change and environmental chemicals contribute to premature births, associated with health vulnerabilities over the course of a person’s life—and map such hot spots.
“It’s very complex, the combinations of socio-economic environment, race, ethnicity and environmental exposure, whether that’s heat or toxic chemicals,” Muglia explains. “Disentangling those things really requires a very sophisticated, multidisciplinary team. That’s what we’ve put together to describe where these hotspots are and see how they correlate with different toxin exposure levels.”
In addition to mapping the risks, researchers are developing novel therapeutics that will be crucial to our armor arsenal, but we will have to be smarter at designing and using them. We will need more potent, better-working monoclonal antibodies. Instead of directly attacking a pathogen, we may have to learn to stimulate the immune system—training it to fight the disease-causing microbes on its own. And rather than indiscriminately killing all bacteria with broad-scope drugs, we would need more targeted medications. “Instead of wiping out the entire gut flora, we will need to come up with ways that kill harmful bacteria but not healthy ones,” Graves says. Training our immune systems to recognize and react to pathogens by way of vaccination will keep us ahead of our biological opponents, too. “Continued development of vaccines against infectious diseases is critical,” says Graves.
With all of the unpredictable events that lie ahead, it is difficult to foresee what achievements in public health will be reported at the end of the 21st century. Yet, technological advances, better modeling and pursuing bigger questions in science, along with education and working closely with communities will help overcome the challenges. The Chan Zuckerberg Initiative displays an optimistic message on its website: “Is it possible to cure, prevent, or manage all diseases by the end of this century? We think so.” Cool shares the view of his employer—and believes that science can get us there. Just give it some time and a chance. “It’s a big, bold statement,” he says, “but the end of the century is a long way away.”Lina Zeldovich has written about science, medicine and technology for Popular Science, Smithsonian, National Geographic, Scientific American, Reader’s Digest, the New York Times and other major national and international publications. A Columbia J-School alumna, she has won several awards for her stories, including the ASJA Crisis Coverage Award for Covid reporting, and has been a contributing editor at Nautilus Magazine. In 2021, Zeldovich released her first book, The Other Dark Matter, published by the University of Chicago Press, about the science and business of turning waste into wealth and health. You can find her on http://linazeldovich.com/ and @linazeldovich.