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.]
Hyperbaric oxygen therapy could treat Long COVID, new study shows
Long COVID is not a single disease, it is a syndrome or cluster of symptoms that can arise from exposure to SARS-CoV-2, a virus that affects an unusually large number of different tissue types. That's because the ACE2 receptor it uses to enter cells is common throughout the body, and inflammation from the immune response fighting that infection can damage surrounding tissue.
One of the most widely shared groups of symptoms is fatigue and what has come to be called “brain fog,” a difficulty focusing and an amorphous feeling of slowed mental functioning and capacity. Researchers have tied these COVID-related symptoms to tissue damage in specific sections of the brain and actual shrinkage in its size.
When Shai Efrati, medical director of the Sagol Center for Hyperbaric Medicine and Research in Tel Aviv, first looked at functional magnetic resonance images (fMRIs) of patients with what is now called long COVID, he saw “micro infarcts along the brain.” It reminded him of similar lesions in other conditions he had treated with hyperbaric oxygen therapy (HBOT). “Once we saw that, we said, this is the type of wound we can treat. It doesn't matter if the primary cause is mechanical injury like TBI [traumatic brain injury] or stroke … we know how to oxidize them.”Efrati came to HBOT almost by accident. The physician had seen how it had helped heal diabetic ulcers and improved the lives of other patients, but he was busy with his own research. Then the director of his Tel Aviv hospital threatened to shut down the small HBOT chamber unless Efrati took on administrative responsibility for it. He reluctantly agreed, a decision that shifted the entire focus of his research.
“The main difference between wounds in the leg and wounds in the brain is that one is something we can see, it's tangible, and the wound in the brain is hidden,” says Efrati. With fMRIs, he can measure how a limited supply of oxygen in blood is shuttled around to fuel activity in various parts of the brain. Years of research have mapped how specific areas of the brain control activity ranging from thinking to moving. An fMRI captures the brain area as it’s activated by supplies of oxygen; lack of activity after the same stimuli suggests damage has occurred in that tissue. Suddenly, what was hidden became visible to researchers using fMRI. It helped to make a diagnosis and measure response to treatment.
HBOT is not a single thing but rather a tool, a process or approach with variations depending on the condition being treated. It aims to increase the amount of oxygen that gets to damaged tissue and speed up healing. Regular air is about 21 percent oxygen. But inside the HBOT chamber the atmospheric pressure can be increased to up to three times normal pressure at sea level and the patient breathes pure oxygen through a mask; blood becomes saturated with much higher levels of oxygen. This can defuse through the damaged capillaries of a wound and promote healing.
The trial
Efrati’s clinical trials started in December 2020, barely a year after SARS-CoV-2 had first appeared in Israel. Patients who’d experienced cognitive issues after having COVID received 40 sessions in the chamber over a period of 60 days. In each session, they spent 90 minutes breathing through a mask at two atmospheres of pressure. While inside, they performed mental exercises to train the brain. The only difference between the two groups of patients was that one breathed pure oxygen while the other group breathed normal air. No one knew who was receiving which level of oxygen.
The results were striking. Before and after fMRIs showed significant repair of damaged tissue in the brain and functional cognition tests improved substantially among those who received pure oxygen. Importantly, 80 percent of patients said they felt back to “normal,” but Efrati says they didn't include patient evaluation in the paper because there was no baseline data to show how they functioned before COVID. After the study was completed, the placebo group was offered a new round of treatments using 100 percent oxygen, and the team saw similar results.
Scans show improved blood flow in a patient suffering from Long Covid.
Sagol Center for Hyperbaric Medicine
Efrati's use of HBOT is part of an emerging geroscience approach to diseases associated with aging. These researchers see systems dysfunctions that are common to several diseases, such as inflammation, which has been shown to play a role in micro infarcts, heart disease and Alzheimer’s disease. Preliminary research suggests that HBOT can retard some underlying mechanisms of aging, which might address several medical conditions. However, the drug approval process is set up to regulate individual disease, not conditions as broad as aging, and so they concentrate on treating the low hanging fruit: disorders where effective treatments currently are limited and success might be demonstrated.
The key to HBOT's effectiveness is something called the hyperoxic-hypoxic paradox where a body does not react to an increase in available oxygen, only to a decrease, regardless of the starting point. That danger signal has a powerful effect on gene expression, resulting in changes in metabolism, and the proliferation of stem cells. That occurs with each cycle of 20 minutes of pure oxygen followed by 5 minutes of regular air circulating through the masks, while the chamber remains pressurized. The high levels of oxygen in the blood provide the fuel necessary for tissue regeneration.
The hyperbaric chamber that Efrati has built can hold a dozen patients and attending medical staff. Think of it as a pressurized airplane cabin, only with much more space than even in first class. In the U.S., people think of HBOT as “a sack of air or some tube that you can buy on Amazon” or find at a health spa. “That is total bullshit,” Efrati says. “It has to be a medical class center where a physician can lose their license if they are not operating it properly.”
Shai Efrati
Alexander Charney, a research psychiatrist at the Icahn School of Medicine at Mount Sinai in New York City, calls Efrati’s study thoughtful and well designed. But it demands a lot from patients with its intense number of sessions. Those types of regimens have proven difficult to roll out to large numbers of patients. Still, the results are intriguing enough to merit additional trials.
John J. Miller, a physician and editor in chief of Psychiatric Times, has seen “many physicians that use hyperbaric oxygen for various brain disorders such as TBI.” He is intrigued by Efrati's work and believes the approach “has great potential to help patients with long COVID whose symptoms are related to brain tissue changes.”
Efrati believes so much in the power of the hyperoxic-hypoxic paradox to heal a variety of tissue injuries that he is leading the medical advisory board at Aviv Clinic, an international network of clinics that are delivering HBOT treatments based on research conducted in Israel. His goal is to silence doubters by quickly opening about 50 such clinics worldwide, based on the model of standalone dialysis clinics in the United States. Sagol Center is treating 300 patients per day, and clinics have opened in Florida and Dubai. There are plans to open another in Manhattan.
A blood test may catch colorectal cancer before it's too late
Soon it may be possible to find different types of cancer earlier than ever through a simple blood test.
Among the many blood tests in development, researchers announced in July that they have developed one that may screen for early-onset colorectal cancer. The new potential screening tool, detailed in a study in the journal Gastroenterology, represents a major step in noninvasively and inexpensively detecting nonhereditary colorectal cancer at an earlier and more treatable stage.
In recent years, this type of cancer has been on the upswing in adults under age 50 and in those without a family history. In 2021, the American Cancer Society's revised guidelines began recommending that colorectal cancer screenings with colonoscopy begin at age 45. But that still wouldn’t catch many early-onset cases among people in their 20s and 30s, says Ajay Goel, professor and chair of molecular diagnostics and experimental therapeutics at City of Hope, a Los Angeles-based nonprofit cancer research and treatment center that developed the new blood test.
“These people will mostly be missed because they will never be screened for it,” Goel says. Overall, colorectal cancer is the fourth most common malignancy, according to the U.S. Centers for Disease Control and Prevention.
Goel is far from the only one working on this. Dozens of companies are in the process of developing blood tests to screen for different types of malignancies.
Some estimates indicate that between one-fourth and one-third of all newly diagnosed colorectal cancers are early-onset. These patients generally present with more aggressive and advanced disease at diagnosis compared to late-onset colorectal cancer detected in people 50 years or older.
To develop his test, Goel examined publicly available datasets and figured out that changes in novel microRNAs, or miRNAs, which regulate the expression of genes, occurred in people with early-onset colorectal cancer. He confirmed these biomarkers by looking for them in the blood of 149 patients who had the early-onset form of the disease. In particular, Goel and his team of researchers were able to pick out four miRNAs that serve as a telltale sign of this cancer when they’re found in combination with each other.
The blood test is being validated by following another group of patients with early-onset colorectal cancer. “We have filed for intellectual property on this invention and are currently seeking biotech/pharma partners to license and commercialize this invention,” Goel says.
He’s far from the only one working on this. Dozens of companies are in the process of developing blood tests to screen for different types of malignancies, says Timothy Rebbeck, a professor of cancer prevention at the Harvard T.H. Chan School of Public Health and the Dana-Farber Cancer Institute. But, he adds, “It’s still very early, and the technology still needs a lot of work before it will revolutionize early detection.”
The accuracy of the early detection blood tests for cancer isn’t yet where researchers would like it to be. To use these tests widely in people without cancer, a very high degree of precision is needed, says David VanderWeele, interim director of the OncoSET Molecular Tumor Board at Northwestern University’s Lurie Cancer Center in Chicago.
Otherwise, “you’re going to cause a lot of anxiety unnecessarily if people have false-positive tests,” VanderWeele says. So far, “these tests are better at finding cancer when there’s a higher burden of cancer present,” although the goal is to detect cancer at the earliest stages. Even so, “we are making progress,” he adds.
While early detection is known to improve outcomes, most cancers are detected too late, often after they metastasize and people develop symptoms. Only five cancer types have recommended standard screenings, none of which involve blood tests—breast, cervical, colorectal, lung (smokers considered at risk) and prostate cancers, says Trish Rowland, vice president of corporate communications at GRAIL, a biotechnology company in Menlo Park, Calif., which developed a multi-cancer early detection blood test.
These recommended screenings check for individual cancers rather than looking for any form of cancer someone may have. The devil lies in the fact that cancers without widespread screening recommendations represent the vast majority of cancer diagnoses and most cancer deaths.
GRAIL’s Galleri multi-cancer early detection test is designed to find more cancers at earlier stages by analyzing DNA shed into the bloodstream by cells—with as few false positives as possible, she says. The test is currently available by prescription only for those with an elevated risk of cancer. Consumers can request it from their healthcare or telemedicine provider. “Galleri can detect a shared cancer signal across more than 50 types of cancers through a simple blood draw,” Rowland says, adding that it can be integrated into annual health checks and routine blood work.
Cancer patients—even those with early and curable disease—often have tumor cells circulating in their blood. “These tumor cells act as a biomarker and can be used for cancer detection and diagnosis,” says Andrew Wang, a radiation oncologist and professor at the University of Texas Southwestern Medical Center in Dallas. “Our research goal is to be able to detect these tumor cells to help with cancer management.” Collaborating with Seungpyo Hong, the Milton J. Henrichs Chair and Professor at the University of Wisconsin-Madison School of Pharmacy, “we have developed a highly sensitive assay to capture these circulating tumor cells.”
Even if the quality of a blood test is superior, finding cancer early doesn’t always mean it’s absolutely best to treat it. For example, prostate cancer treatment’s potential side effects—the inability to control urine or have sex—may be worse than living with a slow-growing tumor that is unlikely to be fatal. “[The test] needs to tell me, am I going to die of that cancer? And, if I intervene, will I live longer?” says John Marshall, chief of hematology and oncology at Medstar Georgetown University Hospital in Washington, D.C.
Ajay Goel Lab
A blood test developed at the University of Texas MD Anderson Cancer Center in Houston helps predict who may benefit from lung cancer screening when it is combined with a risk model based on an individual’s smoking history, according to a study published in January in the Journal of Clinical Oncology. The personalized lung cancer risk assessment was more sensitive and specific than the 2021 and 2013 U.S. Preventive Services Task Force criteria.
The study involved participants from the Prostate, Lung, Colorectal, and Ovarian Cancer Screening Trial with a minimum of a 10 pack-year smoking history, meaning they smoked 20 cigarettes per day for ten years. If implemented, the blood test plus model would have found 9.2 percent more lung cancer cases for screening and decreased referral to screening among non-cases by 13.7 percent compared to the 2021 task force criteria, according to Oncology Times.
The conventional type of screening for lung cancer is an annual low-dose CT scan, but only a small percentage of people who are eligible will actually get these scans, says Sam Hanash, professor of clinical cancer prevention and director of MD Anderson’s Center for Global Cancer Early Detection. Such screening is not readily available in most countries.
In methodically searching for blood-based biomarkers for lung cancer screening, MD Anderson researchers developed a simple test consisting of four proteins. These proteins circulating in the blood were at high levels in individuals who had lung cancer or later developed it, Hanash says.
“The interest in blood tests for cancer early detection has skyrocketed in the past few years,” he notes, “due in part to advances in technology and a better understanding of cancer causation, cancer drivers and molecular changes that occur with cancer development.”
However, at the present time, none of the blood tests being considered eliminate the need for screening of eligible subjects using established methods, such as colonoscopy for colorectal cancer. Yet, Hanash says, “they have the potential to complement these modalities.”