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.]
Researchers advance drugs that treat pain without addiction
Opioids are one of the most common ways to treat pain. They can be effective but are also highly addictive, an issue that has fueled the ongoing opioid crisis. In 2020, an estimated 2.3 million Americans were dependent on prescription opioids.
Opioids bind to receptors at the end of nerve cells in the brain and body to prevent pain signals. In the process, they trigger endorphins, so the brain constantly craves more. There is a huge risk of addiction in patients using opioids for chronic long-term pain. Even patients using the drugs for acute short-term pain can become dependent on them.
Scientists have been looking for non-addictive drugs to target pain for over 30 years, but their attempts have been largely ineffective. “We desperately need alternatives for pain management,” says Stephen E. Nadeau, a professor of neurology at the University of Florida.
A “dimmer switch” for pain
Paul Blum is a professor of biological sciences at the University of Nebraska. He and his team at Neurocarrus have created a drug called N-001 for acute short-term pain. N-001 is made up of specially engineered bacterial proteins that target the body’s sensory neurons, which send pain signals to the brain. The proteins in N-001 turn down pain signals, but they’re too large to cross the blood-brain barrier, so they don’t trigger the release of endorphins. There is no chance of addiction.
When sensory neurons detect pain, they become overactive and send pain signals to the brain. “We wanted a way to tone down sensory neurons but not turn them off completely,” Blum reveals. The proteins in N-001 act “like a dimmer switch, and that's key because pain is sensation overstimulated.”
Blum spent six years developing the drug. He finally managed to identify two proteins that form what’s called a C2C complex that changes the structure of a subunit of axons, the parts of neurons that transmit electrical signals of pain. Changing the structure reduces pain signaling.
“It will be a long path to get to a successful clinical trial in humans," says Stephen E. Nadeau, professor of neurology at the University of Florida. "But it presents a very novel approach to pain reduction.”
Blum is currently focusing on pain after knee and ankle surgery. Typically, patients are treated with anesthetics for a short time after surgery. But anesthetics usually only last for 4 to 6 hours, and long-term use is toxic. For some, the pain subsides. Others continue to suffer after the anesthetics have worn off and start taking opioids.
N-001 numbs sensation. It lasts for up to 7 days, much longer than any anesthetic. “Our goal is to prolong the time before patients have to start opioids,” Blum says. “The hope is that they can switch from an anesthetic to our drug and thereby decrease the likelihood they're going to take the opioid in the first place.”
Their latest animal trial showed promising results. In mice, N-001 reduced pain-like behaviour by 90 percent compared to the control group. One dose became effective in two hours and lasted a week. A high dose had pain-relieving effects similar to an opioid.
Professor Stephen P. Cohen, director of pain operations at John Hopkins, believes the Neurocarrus approach has potential but highlights the need to go beyond animal testing. “While I think it's promising, it's an uphill battle,” he says. “They have shown some efficacy comparable to opioids, but animal studies don't translate well to people.”
Nadeau, the University of Florida neurologist, agrees. “It will be a long path to get to a successful clinical trial in humans. But it presents a very novel approach to pain reduction.”
Blum is now awaiting approval for phase I clinical trials for acute pain. He also hopes to start testing the drug's effect on chronic pain.
Learning from people who feel no pain
Like Blum, a pharmaceutical company called Vertex is focusing on treating acute pain after surgery. But they’re doing this in a different way, by targeting a sodium channel that plays a critical role in transmitting pain signals.
In 2004, Stephen Waxman, a neurology professor at Yale, led a search for genetic pain anomalies and found that biologically related people who felt no pain despite fractures, burns and even childbirth had mutations in the Nav1.7 sodium channel. Further studies in other families who experienced no pain showed similar mutations in the Nav1.8 sodium channel.
Scientists set out to modify these channels. Many unsuccessful efforts followed, but Vertex has now developed VX-548, a medicine to inhibit Nav1.8. Typically, sodium ions flow through sodium channels to generate rapid changes in voltage which create electrical pulses. When pain is detected, these pulses in the Nav1.8 channel transmit pain signals. VX-548 uses small molecules to inhibit the channel from opening. This blocks the flow of sodium ions and the pain signal. Because Nav1.8 operates only in peripheral nerves, located outside the brain, VX-548 can relieve pain without any risk of addiction.
"Frankly we need drugs for chronic pain more than acute pain," says Waxman.
The team just finished phase II clinical trials for patients following abdominoplasty surgery and bunionectomy surgery.
After abdominoplasty surgery, 76 patients were treated with a high dose of VX-548. Researchers then measured its effectiveness in reducing pain over 48 hours, using the SPID48 scale, in which higher scores are desirable. The score for Vertex’s drug was 110.5 compared to 72.7 in the placebo group, whereas the score for patients taking an opioid was 85.2. The study involving bunionectomy surgery showed positive results as well.
Waxman, who has been at the forefront of studies into Nav1.7 and Nav1.8, believes that Vertex's results are promising, though he highlights the need for further clinical trials.
“Blocking Nav1.8 is an attractive target,” he says. “[Vertex is] studying pain that is relatively simple and uniform, and that's key to having a drug trial that is informative. But the study needs to be replicated and frankly we need drugs for chronic pain more than acute pain. If this is borne out by additional studies, it's one important step in a journey.”
Vertex will be launching phase III trials later this year.
Finding just the right amount of Nerve Growth Factor
Whereas Neurocarrus and Vertex are targeting short-term pain, a company called Levicept is concentrating on relieving chronic osteoarthritis pain. Around 32.5 million Americans suffer from osteoarthritis. Patients commonly take NSAIDs, or non-steroidal anti-inflammatory drugs, but they cannot be taken long-term. Some take opioids but they aren't very effective.
Levicept’s drug, Levi-04, is designed to modify a signaling pathway associated with pain. Nerve Growth Factor (NGF) is a neurotrophin: it’s involved in nerve growth and function. NGF signals by attaching to receptors. In pain there are excess neurotrophins attaching to receptors and activating pain signals.
“What Levi-04 does is it returns the natural equilibrium of neurotrophins,” says Simon Westbrook, the CEO and founder of Levicept. It stabilizes excess neurotrophins so that the NGF pathway does not signal pain. Levi-04 isn't addictive since it works within joints and in nerves outside the brain.
Westbrook was initially involved in creating an anti-NGF molecule for Pfizer called Tanezumab. At first, Tanezumab seemed effective in clinical trials and other companies even started developing their own versions. However, a problem emerged. Tanezumab caused rapidly progressive osteoarthritis, or RPOA, in some patients because it completely removed NGF from the system. NGF is not just involved in pain signalling, it’s also involved in bone growth and maintenance.
Levicept has found a way to modify the NGF pathway without completely removing NGF. They have now finished a small-scale phase I trial mainly designed to test safety rather than efficacy. “We demonstrated that Levi-04 is safe and that it bound to its target, NGF,” says Westbrook. It has not caused RPOA.
Professor Philip Conaghan, director of the Leeds Institute of Rheumatic and Musculoskeletal Medicine, believes that Levi-04 has potential but urges the need for caution. “At this early stage of development, their molecule looks promising for osteoarthritis pain,” he says. “They will have to watch out for RPOA which is a potential problem.”
Westbrook starts phase II trials with 500 patients this summer to check for potential side effects and test the drug’s efficacy.
There is a real push to find an effective alternative to opioids. “We have a lot of work to do,” says Professor Waxman. “But I am confident that we will be able to develop new, much more effective pain therapies.”
In the 1990s, a mysterious virus spread throughout the Massachusetts Institute of Technology Artificial Intelligence Lab—or that’s what the scientists who worked there thought. More of them rubbed their aching forearms and massaged their cricked necks as new computers were introduced to the AI Lab on a floor-by-floor basis. They realized their musculoskeletal issues coincided with the arrival of these new computers—some of which were mounted high up on lab benches in awkward positions—and the hours spent typing on them.
Today, these injuries have become more common in a society awash with smart devices, sleek computers, and other gadgets. And we don’t just get hurt from typing on desktop computers; we’re massaging our sore wrists from hours of texting and Facetiming on phones, especially as they get bigger in size.
In 2007, the first iPhone measured 3.5-inches diagonally, a measurement known as the display size. That’s been nearly doubled by the newest iPhone 13 Pro, which has a 6.7-inch display. Other phones, too, like the Google Pixel 6 and the Samsung Galaxy S22, have bigger screens than their predecessors. Physical therapists and orthopedic surgeons have had to come up with names for a variety of new conditions: selfie elbow, tech neck, texting thumb. Orthopedic surgeon Sonya Sloan says she sees selfie elbow in younger kids and in women more often than men. She hears complaints related to technology once or twice a day.
The addictive quality of smartphones and social media means that people spend more time on their devices, which exacerbates injuries. According to Statista, 68 percent of those surveyed spent over three hours a day on their phone, and almost half spent five to six hours a day. Another report showed that people dedicate a third of their day to checking their phones, while the Media Effects Research Laboratory at Pennsylvania State University has found that bigger screens, ideal for entertainment purposes, immerse their users more than smaller screens. Oversized screens also provide easier navigation and more space for those with bigger hands or trouble seeing.
But others with conditions like arthritis can benefit from smaller phones. In March of 2016, Apple released the iPhone SE with a display size of 4.7 inches—an inch smaller than the iPhone 7, released that September. Apple has since come out with two more versions of the diminutive iPhone SE, one in 2020 and another in 2022.
These devices are now an inextricable part of our lives. So where does the burden of responsibility lie? Is it with consumers to adjust body positioning, get ergonomic workstations, and change habits to abate tech-related pain? Or should tech companies be held accountable?
Kavin Senapathy, a freelance science journalist, has the Google Pixel 6. She was drawn to the phone because Google marketed the Pixel 6’s camera as better at capturing different skin tones. But this phone boasts one of the largest display sizes on the market: 6.4 inches.
Senapathy was diagnosed with carpal and cubital tunnel syndromes in 2017 and fibromyalgia in 2019. She has had to create a curated ergonomic workplace setup, otherwise her wrists and hands get weak and tingly, and she’s had to adjust how she holds her phone to prevent pain flares.
Recently, Senapathy underwent an electromyography, or an EMG, in which doctors insert electrodes into muscles to measure their electrical activity. The electrical response of the muscles tells doctors whether the nerve cells and muscles are successfully communicating. Depending on her results, steroid shots and even surgery might be required. Senapathy wants to stick with her Pixel 6, but the pain she’s experiencing may push her to buy a smaller phone. Unfortunately, options for these modestly sized phones are more limited.
These devices are now an inextricable part of our lives. So where does the burden of responsibility lie? Is it with consumers like Senapathy to adjust body positioning, get ergonomic workstations, and change habits to abate tech-related pain? Or should tech companies be held accountable for creating addictive devices that lead to musculoskeletal injury?
Kavin Senapathy, a freelance journalist, bought the Google Pixel 6 because of its high-quality camera, but she’s had to adjust how she holds the oversized phone to prevent pain flares.
Kavin Senapathy
A one-size-fits-all mentality for smartphones will continue to lead to injuries because every user has different wants and needs. S. Shyam Sundar, the founder of Penn State’s lab on media effects and a communications professor, says the needs for mobility and portability conflict with the desire for greater visibility. “The best thing a company can do is offer different sizes,” he says.
Joanna Bryson, an AI ethics expert and professor at The Hertie School of Governance in Berlin, Germany, echoed these sentiments. “A lot of the lack of choice we see comes from the fact that the markets have consolidated so much,” she says. “We want to make sure there’s sufficient diversity [of products].”
Consumers can still maintain some control despite the ubiquity of tech. Sloan, the orthopedic surgeon, has to pester her son to change his body positioning when using his tablet. Our heads get heavier as they bend forward: at rest, they weigh 12 pounds, but bent 60 degrees, they weigh 60. “I have to tell him, ‘Raise your head, son!’” she says. It’s important, Sloan explains, to consider that growth and development will affect ligaments and bones in the neck, potentially making kids even more vulnerable to injuries from misusing gadgets. She recommends that parents limit their kids’ tech time to alleviate strain. She also suggested that tech companies implement a timer to remind us to change our body positioning.
In 2017, Nan-Wei Gong, a former contractor for Google, founded Figur8, which uses wearable trackers to measure muscle function and joint movement. It’s like physical therapy with biofeedback. “Each unique injury has a different biomarker,” says Gong. “With Figur8, you are comparing yourself to yourself.” This allows an individual to self-monitor for wear and tear and strengthen an injury in a way that’s efficient and designed for their body. Gong noticed that the work-from-home model during the COVID-19 pandemic created a new set of ergonomic problems that resulted in injuries. Figur8 provides real-time data for these injuries because “behavioral change requires feedback.”
Gong worked on a project called Jacquard while at Google. Textile experts weave conductive thread into their fabric, and the result is a patch of the fabric—like the cuff of a Levi’s jacket—that responds to commands on your smartphone. One swipe can call your partner or check the weather. It was designed with cyclists in mind who can’t easily check their phones, and it’s part of a growing movement in the tech industry to deliver creative, hands-free design. Gong thinks that engineers at large corporations like Google have accessibility in mind; it’s part of what drives their decisions for new products.
Display sizes of iPhones have become larger over time.
Sourced from Screenrant https://screenrant.com/iphone-apple-release-chronological-order-smartphone/ and Apple Tech Specs: https://www.apple.com/iphone-se/specs/
Back in Germany, Joanna Bryson reminds us that products like smartphones should adhere to best practices. These rules may be especially important for phones and other products with AI that are addictive. Disclosure, accountability, and regulation are important for AI, she says. “The correct balance will keep changing. But we have responsibilities and obligations to each other.” She was on an AI Ethics Council at Google, but the committee was disbanded after only one week due to issues with one of their members.
Bryson was upset about the Council’s dissolution but has faith that other regulatory bodies will prevail. OECD.AI, and international nonprofit, has drafted policies to regulate AI, which countries can sign and implement. “As of July 2021, 46 governments have adhered to the AI principles,” their website reads.
Sundar, the media effects professor, also directs Penn State’s Center for Socially Responsible AI. He says that inclusivity is a crucial aspect of social responsibility and how devices using AI are designed. “We have to go beyond first designing technologies and then making them accessible,” he says. “Instead, we should be considering the issues potentially faced by all different kinds of users before even designing them.”