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.]
Podcast: Trusting Science with Dr. Sudip Parikh, CEO of AAAS
The "Making Sense of Science" podcast features interviews with leading experts about health innovations and the big ethical and social questions they raise. The podcast is hosted by Matt Fuchs, editor of the award-winning science outlet Leaps.org.
As Pew research showed last month, many Americans have less confidence in science these days - our collective trust has declined to levels below when the pandemic began. But leaders like Dr. Sudip Parikh are taking important steps to more fully engage people in scientific progress, including breakthroughs that could benefit health and prevent disease. In January 2020, Sudip became the 19th Chief Executive Officer of the American Association for the Advancement of Science (AAAS), an international nonprofit that seeks to advance science, engineering and innovation throughout the world, with 120,000 members in 91 countries. He is the executive publisher of Science, one of the top academic journals in the world, and the Science family of journals.
Listen to the episode
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In this episode, Sudip and I talk about:
- Reasons to be excited about health innovations that could come to fruition in the next several years.
- Sudip's thoughts about areas of health innovation where we should be especially cautious.
- Strategies for scientists and journalists to instill greater trust in science.
- How to tap into and nurture kids' passion for STEM subjects.
- The best roles for experts to play in society and the challenges they face.
And we pack several other fascinating topics into our 35 minutes. Here are links to check out and learn more about Sudip Parikh and AAAS:
- Sudip Parikh's official bio - https://www.aaas.org/person/sudip-parikh
- Sudip Parikh, Why We Must Rebuild Trust in Science, Trend Magazine, Feb. 9, 2021 - https://www.pewtrusts.org/en/trend/archive/winter-...
- Follow Sudip on Twitter - https://twitter.com/sudipsparikh
- AAAS website - https://www.aaas.org/
- AAAS podcast - https://www.science.org/podcasts
- The latest issue of Science - https://www.science.org/
- Science Journals homepage - https://www.science.org/journals
- AAAS Mentor Resources - https://www.aaas.org/stemmentoring
- AAAS Science Journalism Awards - https://sjawards.aaas.org/enter
- Pew Research Center Report, Americans' Trust in Scientists, Other Groups Declines, Feb. 15, 2022 https://www.pewresearch.org/science/2022/02/15/ame...
An implant, combined with the glasses and tiny video camera modeled in this photo, could improve the eyesight of millions of people with degenerative eye diseases in the coming years.
For millions of people with macular degeneration, treatment options are slim. The disease causes loss of central vision, which allows us to see straight ahead, and is highly dependent on age, with people over 75 at approximately 30% risk of developing the disorder. The BrightFocus Foundation estimates 11 million people in the U.S. currently have one of three forms of the disease.
Recently, ophthalmologists including Daniel Palanker at Stanford University published research showing advances in the PRIMA retinal implant, which could help people with advanced, age-related macular degeneration regain some of their sight. In a feasibility study, five patients had a pixelated chip implanted behind the retina, and three were able to see using their remaining peripheral vision and—thanks to the implant—their partially restored central vision at the same time.
Should people with macular degeneration be excited about these results?
“Every week, if not every day, patients come to me with this question because it's devastating when they lose their central vision,” says retinal surgeon Lynn Huang. About 40% of her patients have macular degeneration. Huang tells them that these implants, along with new medications and stem cell therapies, could be useful in the coming years.
“The goal here is to replace the missing photoreceptors with photovoltaic pixels, basically like little solar panels,” Palanker says.
That implant, a pixelated chip, works together with a tiny video camera on a specially designed pair of eyeglasses, which can be adjusted for each patient’s prescription. The video camera relays processed images to the chip, which electrically stimulates inner retinal neurons. These neurons, in turn, relay information to the brain’s visual cortex through the optic nerve. The chip restores patients’ central sight, but not completely. The artificial vision is basically monochromatic (whitish-yellowish) and fairly blurry; patients were still legally blind even after the implant, except when using a zoom function on the camera, but those with proper chip placement could make out large letters.
“The goal here is to replace the missing photoreceptors with photovoltaic pixels, basically like little solar panels,” Palanker says. These pixels, located on the implanted chip, convert light into pulsed electrical currents that stimulate retinal neurons. In time, Palanker hopes to improve the chips, resulting in bigger boosts to visual acuity.
The pixelated chips are surgically implanted during a process Palanker admits is still “a surgical learning curve.” In the study, three chips were implanted correctly, one was placed incorrectly, and another patient’s chip moved after the procedure; he did not follow post-surgical recommendations. One patient passed away during the study for unrelated reasons.
University of Maryland retinal specialist Kenneth Taubenslag, who was not involved in the study, said that subretinal surgeries have become less common in recent years, but expects implants to spur improvements in these techniques. “I think as people get more experience, [they’ll] probably get more reliable placement of the implant,” he said, pointing out that even the patient with the misplaced chip was able to gain some light perception, if not the same visual acuity as other patients.
Retinal implants have come under scrutiny lately. IEEE Spectrum reported that Second Sight, manufacturer of the Argus II implant used for people with retinitis pigmentosa, a genetic disease that causes vision loss, would no longer support the product. After selling hundreds of the implants at $150,000 apiece, company leaders announced they’d “decided to pursue an orderly wind down” of Second Sight in March 2020 in the wake of financial issues. Last month, the company announced a merger, shifting its focus to a new retinal implant, raising questions for patients who have Argus II implants.
Retinal surgeon Eugene de Juan of the University of California, San Francisco, was involved with early studies of the Argus implants, though his participation ended over a decade ago, before the device was marketed by Second Sight. He says he would consider recommending future implants to patients with macular degeneration, given the promise of the technology and the lack of other alternatives.
“I tell my patients that this is an area of active research and development, and it's getting better and better, so let's not give up hope,” de Juan says. He believes cautious optimism for Palanker’s implant is appropriate: “It's not the first, it's not the only, but it's a good approach with a good team.”