October 14 | 2020
Abortions Before Fetal Viability Are Legal: Might Science and the Change on the Supreme Court Undermine That?
Josephine Johnston is Director of Research and a Research Scholar at The Hastings Center, an independent bioethics research institute in Garrison, New York. She works on the ethics of emerging biotechnologies, particularly as used in human reproduction, psychiatry, genetics, and neuroscience. Her scholarly work has appeared in medical, scientific, policy, law, and bioethics journals, including New England Journal of Medicine, Science, Nature, Hastings Center Report, and Journal of Law, Medicine and Ethics. She has also written for Stat News, New Republic, Time, Washington Post, and The Scientist, and is frequently interviewed by journalists. Ms. Johnston holds degrees in law and bioethics from the University of Otago in New Zealand. Her current research addresses developments in genetics, including prenatal testing, gene editing, and newborn sequencing.
The United States Supreme Court Building in Washington, D.C.
Unsplash
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.]
Josephine Johnston is Director of Research and a Research Scholar at The Hastings Center, an independent bioethics research institute in Garrison, New York. She works on the ethics of emerging biotechnologies, particularly as used in human reproduction, psychiatry, genetics, and neuroscience. Her scholarly work has appeared in medical, scientific, policy, law, and bioethics journals, including New England Journal of Medicine, Science, Nature, Hastings Center Report, and Journal of Law, Medicine and Ethics. She has also written for Stat News, New Republic, Time, Washington Post, and The Scientist, and is frequently interviewed by journalists. Ms. Johnston holds degrees in law and bioethics from the University of Otago in New Zealand. Her current research addresses developments in genetics, including prenatal testing, gene editing, and newborn sequencing.
April 22 | 2021
Is Carbon Dioxide the New Black? Yes, If These Fabric-Designing Scientists Have Their Way
The entrepreneurs Tawfiq Nasr Allah (left, standing) and Benoit Illy (right, sitting down) at Fairbrics' lab in Clichy, France.
Courtesy of Fairbrics
Each year the world releases around 33 billion tons of carbon dioxide into the atmosphere. What if we could use this waste carbon dioxide to make shirts, dresses and hats? It sounds unbelievable. But two innovators are trying to tackle climate change in this truly unique way.
Chemist Tawfiq Nasr Allah set up Fairbrics with material scientist Benoît Illy in 2019. They're using waste carbon dioxide from industrial fumes as a raw material to create polyester, identical to the everyday polyester we use now. They want to take a new and very different approach to make the fashion industry more sustainable.
The Dark Side of Fast Fashion
The fashion industry is responsible for around 4% of global emissions. In a 2015 report, the MIT Materials Systems Laboratory predicted that the global impact of polyester fabric will grow from around 880 billion kg of CO2 in 2015 to 1.5 trillion kg of CO2 by 2030.
Professor Greg Peters, an expert in environmental science and sustainability, highlights the wide-ranging difficulties caused by the production of polyester. "Because it is made from petrochemical crude oil there is no real limit on how much polyester can be produced...You have to consider the ecological damage (oil spills, fracking etc.) caused by the oil and gas industry."
Many big-name brands have pledged to become carbon neutral by 2050. But nothing has really changed in the way polyester is produced.
Some companies are recycling plastic bottles into polyester. The plastic is melted into ultra-fine strands and then spun to create polyester. However, only a limited number of bottles are available. New materials must be added because of the amount of plastic degradation that takes place. Ultimately, recycling accounts for only a small percentage of the total amount of polyester produced.
Nasr Allah and Illy hope they can offer the solution the fashion industry is looking for. They are not just reducing the carbon emissions that are conventionally produced by making polyester. Their process actually goes much further. It's carbon negative and works by using up emissions from other industries.
"In a sense we imitate what nature does so well: plants capture CO2 and turn it into natural fibers using sunlight, we capture CO2 and turn it into synthetic fibers using electricity."
Experts in the field see a lot of promise. Dr Phil de Luna is an expert in carbon valorization -- the process of converting carbon dioxide into high-value chemicals. He leads a $57-million research program developing the technology to decarbonize Canada.
"I think the approach is great," he says. "Being able to take CO2 and then convert it into polymers or polyester is an excellent way to think about utilizing waste emissions and replacing fossil fuel-based materials. That is overall a net negative as compared to making polyester from fossil fuels."
From Harmful Waste to Useful Raw Material
It all started with Nasr Allah's academic research, primarily at the French Alternative Energies and Atomic Energy Commission (CEA). He spent almost 5 years investigating CO2 valorization. In essence, this involves breaking the bonds between the carbon and oxygen atoms in CO2 to create bonds with other elements.
Recycling carbon dioxide in this way requires extremely high temperatures and pressures. Catalysts are needed to break the strong bonds between the atoms. However, these are toxic, volatile and quickly lose their effectiveness over time. So, directly converting carbon dioxide into the raw material for making polyester fibers is very difficult.
Nasr Allah developed a process involving multiple simpler stages. His innovative approach involves converting carbon dioxide to intermediate chemicals. These chemicals can then be transformed into the raw material which is used in the production of polyester. After many experiments, Nasr Allah developed new processes and new catalysts that worked more effectively.
"We use a catalyst to transform CO2 into the chemicals that are used for polyester manufacturing," Illy says. "In a sense we imitate what nature does so well: plants capture CO2 and turn it into natural fibers using sunlight, we capture CO2 and turn it into synthetic fibers using electricity."
The Challenges Ahead
Nasr Allah met material scientist Illy through Entrepreneur First, a programme which pairs individuals looking to form technical start-ups. Together they set up Fairbrics and worked on converting Nasr Allah's lab findings into commercial applications and industrial success.
"The main challenge we faced was to scale up the process," Illy reveals. "[It had to be] consistent and safe to be carried out by a trained technician, not a specialist PhD as was the case in the beginning."
They recruited a team of scientists to help them develop a more effective and robust manufacturing process. Together, the team gained a more detailed theoretical understanding about what was happening at each stage of the chemical reactions. Eventually, they were able to fine tune the process and produce consistent batches of polyester.
They're making significant progress. They've produced their first samples and signed their first commercial contract to make polyester, which will then be both fabricated into clothes and sold by partner companies.
Currently, one of the largest challenges is financial. "We need to raise a fair amount to buy the equipment we need to produce at a large scale," Illy explains.
How to Power the Process?
At the moment, their main scientific focus is getting the process working reliably so they can begin commercialization. In order to remain sustainable and economically viable once they start producing polyester on a large scale, they need to consider the amount of energy they use for carbon valorization and the emissions they produce.
The more they optimize the way their catalyst works, the easier it will be to transform the CO2. The whole process can then become more cost effective and energy efficient.
De Luna explains: "My concern is...whether their process will be economical at scale. The problem is the energy cost to take carbon dioxide and transform it into these other products and that's where the science and innovation has to happen. [Whether they can scale up economically] depends on the performance of their catalyst."
They don't just need to think about the amount of energy they use to produce polyester; they also have to consider where this energy comes from.
"They need access to cheap renewable energy," De Luna says, "...so they're not using or emitting CO2 to do the conversion." If the energy they use to transform CO2 into polyester actually ends up producing more CO2, this will end up cancelling out their positive environmental impact.
Based in France, they're well located to address this issue. France has a clean electricity system, with only about 10% of their electric power coming from fossil fuels due to their reliance on nuclear energy and renewables.
Where Do They Get the Carbon Dioxide?
As they scale up, they also need to be able to access a source of CO2. They intend to obtain this from the steel industry, the cement industry, and hydrogen production.
The technology to purify and capture waste carbon dioxide from these industries is available on a large scale. However, there are only around 20 commercial operations in the world. The high cost of carbon capture means that development continues to be slow. There are a growing number of startups capturing carbon dioxide straight from the air, but this is even more costly.
One major problem is that storing captured carbon dioxide is expensive. "There are somewhat limited options for permanently storing captured CO2, so innovations like this are important,'' says T. Reed Miller, a researcher at the Yale University Center for Industrial Ecology.
Illy says: "The challenge is now to decrease the cost [of carbon capture]. By using CO2 as a raw material, we can try to increase the number of industries that capture CO2. Our goal is to turn CO2 from a waste into a valuable product."
Beyond Fashion
For Nasr Allah and Illy, fashion is just the beginning. There are many markets they can potentially break into. Next, they hope to use the polyester they've created in the packaging industry. Today, a lot of polyester is consumed to make bottles and jars. Illy believes that eventually they can produce many different chemicals from CO2. These chemicals could then be used to make paints, adhesives, and even plastics.
The Fairbrics scientists are providing a vital alternative to fossil fuels and showcasing the real potential of carbon dioxide to become a worthy resource instead of a harmful polluter.
Illy believes they can make a real difference through innovation: "We can have a significant impact in reducing climate change."
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Sarah Philip is a London-based freelance journalist who writes about science, film and TV. You can follow her on Twitter @sarahph1lip.
Vaccine passports, if required by businesses and universities, may give people a false sense of security, one expert cautions.
Vaccines are one of the greatest public health accomplishments of all time. For centuries, public health has relied on vaccinations to prevent and control disease outbreaks for a plethora of infectious scourges, with our crowning achievement being the successful eradication of smallpox.
The purpose of vaccine documentation is to provide proof of an individual's protection from either becoming infected or transmitting a vaccine-preventable disease. Vouching for these protections requires a firm knowledge about the epidemiology of the disease, as well as scientific knowledge concerning the efficacy of the vaccine. The vaccines we currently require be documented have met these tests; the vaccine for COVID-19 has not yet been proven to do so.
Let's acknowledge that the term "vaccine passport" is a poor choice of words. Passports are a legal travel document created by nations and governed by law for identification of the bearer to control entry and exit from nation states. They often serve as legal forms of identification and as a record of international travel. They are generally very sophisticated documents that have been created in a secure manner and may include a range of electronic and, in some cases, biometric measures such as fingerprints to ensure the holder is indeed who they say they are. Vaccine passports are medical documents used to document the vaccination status of an individual. They do not undergo the same level of administrative scrutiny and cannot be used to verify that the presenter is indeed the vaccinated individual. Some companies do have electronic methods to address concerns about verification; however, most people currently have paper records that can be easily falsified.
"Vaccine passports" as currently proposed risk giving people a false sense of security.
Successful disease control from vaccination programs relies on the ability to vaccinate at a level that prevents large-scale disease spread and the ability to rapidly identify the presence of disease outbreaks. It requires reliable, safe, and effective vaccines that are easily delivered in clinical and nonclinical settings. Keeping vaccination information as a part of the medical record, and even having a separate specialized vaccine record for personal use, is a time-honored tradition.
Keeping a vaccination record provides a method to keep track of the many shots one receives and serves as a visual reminder to help ensure the appropriate vaccine shot schedule is maintained for vaccines requiring multiple doses. The vaccine record, when combined with vaccine safety monitoring systems, serves as a mechanism to track adverse events to monitor and ensure the safety of vaccines as a consumer product. The record also serves as the official record of vaccination when required for administrative or legally prescribed purposes.
"Vaccine passports" as currently proposed risk giving people a false sense of security. In the case of the COVID-19 vaccines currently approved for use, many of the essential questions remain unanswered. While we do know the current three vaccines are highly protective against severe disease and death, and there is some evidence that these vaccinations do reduce infections and virus transmission of SARS-CoV-2, we do not yet know the full degree to which this occurs.
For example, we know there have been some cases of people that have been infected in close proximity to getting their full vaccination and rare cases of breakthrough reinfections. A breakthrough infection in a restaurant is a challenge for contact tracing, but an outbreak from a movie theater exposure or a baseball game could spark a major outbreak at our current level of vaccination. Current CDC guidance recommends continued mask wearing in order to address these concerns.
We also do not yet know how long the protections will last and if or when a booster or revaccination is required. In effect, it is too soon to know. Should an annual booster shot be required, then a vaccine passport would require annual updating, a process more frequent than renewal of a driver's license.
We also know that the current SARS-CoV-2 virus is mutating briskly. While the current approved vaccines have remained effective overall, there is evidence of some degree of degradation in vaccine effectiveness against some of the circulating strains. We also have sparse data on many of the other emerging strains of concern because we have not had the surveillance capacity in the U.S. to gain an adequate sense of how the virus is changing to fully align vaccine effectiveness with viral capabilities.
The risk of people misusing these "passports" is troubling. The potential for using these documents for hiring, firing or job limitation is a serious concern. Unvaccinated workers are at risk of this form of discrimination even from well-meaning employers or supervisors. Health insurers are prohibited by the Affordable Care Act from discriminating based on preexisting conditions, but they could probably charge a higher premium for unvaccinated individuals. There also is a risk of stigmatizing individuals who are not vaccinated or have left their vaccine documentation at home. Another concern: the opportunity to discriminate based on race, gender, sexual orientation, or religion, using one's vaccination status as an excuse.
These "passports" are being discussed as a "ticket verification" for entry to many activities, including dining at restaurants, flying domestically and/or internationally, going to movie theaters and sporting events, etc. These are all activities we already are doing at reduced levels and for which wearing a mask, hand hygiene and physical distancing are effective disease control practices. COVID-19 vaccines are indeed the measure that will make the ability to totally reopen our society complete, but we are not there yet. Documentation of one's COVID-19 vaccine status may be useful in selected situations in the future. That remains to be seen.
Finally, inadequate vaccine supply and disparities in vaccine delivery have created enormous challenges in providing equal access to vaccination. Also, the amount of misinformation, disinformation, and lingering vaccine hesitancy continue to limit the speed at which we will reach the level of vaccination of the population that would make this documentation meaningful. The requirement for "vaccine passports" is already alienating people who are opposed to vaccinations for a variety of reasons, paradoxically risking reduced vaccine uptake. This politicization of the vaccination effort is of concern. There are indeed people who, due to medical contraindications or legal exemptions, will not be vaccinated, and we do not yet have a national framework on how to address this.
Vaccine passports are not the solution for reopening our society — a robust vaccination program is. The requirement to document one's vaccination status for COVID-19 may one day have its place. For now, it is an idea whose time has not yet come.
Editor's Note: This op/ed is part of a "Big Question" series on the ethics of vaccine passports. Read the flip side argument here.
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Georges C. Benjamin, MD, is a well-known health policy leader, practitioner and administrator. He currently serves as the executive director of the American Public Health Association, the nation's oldest and largest organization of public health professionals. He is also a former secretary of health for the state of Maryland. Dr. Benjamin is a graduate of the Illinois Institute of Technology and the University Of Illinois College Of Medicine. He is board-certified in internal medicine, a Master of the American College of Physicians, a fellow of the National Academy of Public Administration, a fellow emeritus of the American College of Emergency Physicians, and a member of the National Academy of Medicine. He serves on several nonprofit boards such as Research!America, the Truth Foundation and, the Reagan-Udall Foundation. He is also a former member of the National Infrastructure Advisory Council, a council that advises the President on how best to assure the security of the nation’s critical infrastructure.