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.]
New gene therapy helps patients with rare disease. One mother wouldn't have it any other way.
Three years ago, Jordan Janz of Consort, Alberta, knew his gene therapy treatment for cystinosis was working when his hair started to darken. Pigmentation or melanin production is just one part of the body damaged by cystinosis.
“When you have cystinosis, you’re either a redhead or a blonde, and you are very pale,” attests Janz, 23, who was diagnosed with the disease just eight months after he was born. “After I got my new stem cells, my hair came back dark, dirty blonde, then it lightened a little bit, but before it was white blonde, almost bleach blonde.”
According to Cystinosis United, about 500 to 600 people have the rare genetic disease in the U.S.; an estimated 20 new cases are diagnosed each year.
Located in Cambridge, Mass., AVROBIO is a gene therapy company that targets cystinosis and other lysosomal storage disorders, in which toxic materials build up in the cells. Janz is one of five patients in AVROBIO’s ongoing Phase 1/2 clinical trial of a gene therapy for cystinosis called AVR-RD-04.
Recently, AVROBIO compiled positive clinical data from this first and only gene therapy trial for the disease. The data show the potential of the therapy to genetically modify the patients’ own hematopoietic stem cells—a certain type of cell that’s capable of developing into all different types of blood cells—to express the functional protein they are deficient in. It stabilizes or reduces the impact of cystinosis on multiple tissues with a single dose.
Medical researchers have found that more than 80 different mutations to a gene called CTNS are responsible for causing cystinosis. The most common mutation results in a deficiency of the protein cystinosin. That protein functions as a transporter that regulates a lot metabolic processes in the cells.
“One of the first things we see in patients clinically is an accumulation of a particular amino acid called cystine, which grows toxic cystine crystals in the cells that cause serious complications,” explains Essra Rihda, chief medical officer for AVROBIO. “That happens in the cells across the tissues and organs of the body, so the disease affects many parts of the body.”
Jordan Janz, 23, meets Stephanie Cherqui, the principal investigator of his gene therapy trial, before the trial started in 2019.
Jordan Janz
According to Rihda, although cystinosis can occur in kids and adults, the most severe form of the disease affects infants and makes up about 95 percent of overall cases. Children typically appear healthy at birth, but around six to 18 months, they start to present for medical attention with failure to thrive.
Additionally, infants with cystinosis often urinate frequently, a sign of polyuria, and they are thirsty all the time, since the disease usually starts in the kidneys. Many develop chronic kidney disease that ultimately progresses to the point where the kidney no longer supports the body’s needs. At that stage, dialysis is required and then a transplant. From there the disease spreads to many other organs, including the eyes, muscles, heart, nervous system, etc.
“The gene for cystinosis is expressed in every single tissue we have, and the accumulation of this toxic buildup alters all of the organs of the patient, so little by little all of the organs start to fail,” says Stephanie Cherqui, principal investigator of Cherqui Lab, which is part of UC San Diego’s Department of Pediatrics.
Since the 1950s, a drug called cysteamine showed some therapeutic effect on cystinosis. It was approved by the FDA in 1994 to prevent damage that may be caused by the buildup of cystine crystals in organs. Prior to FDA approval, Cherqui says, children were dying of the disease before they were ten-years-old or after a kidney transplant. By taking oral cysteamine, they can live from 20 to 50 years longer. But it’s a challenging drug because it has to be taken every 6 or 12 hours, and there are serious gastric side effects such as nausea and diarrhea.
“With all of the complications they develop, the typical patient takes 40 to 60 pills a day around the clock,” Cherqui says. “They literally have a suitcase of medications they have to carry everywhere, and all of those medications don’t stop the progression of the disease, and they still die from it.”
Cherqui has been a proponent of gene therapy to treat children’s disorders since studying cystinosis while earning her doctorate in 2002. Today, her lab focuses on developing stem cell and gene therapy strategies for degenerative, hereditary disorders such as cystinosis that affect multiple systems of the body. “Because cystinosis expresses in every tissue in the body, I decided to use the blood-forming stem cells that we have in our bone marrow,” she explains. “These cells can migrate to anywhere in the body where the person has an injury from the disease.”
AVROBIO’s hematopoietic stem cell gene therapy approach collects stem cells from the patient’s bone marrow. They then genetically modify the stem cells to give the patient a copy of the healthy CTNS gene, which the person either doesn’t have or it’s defective.
The patient first undergoes apheresis, a medical procedure in which their blood is passed through an apparatus that separates out the diseased stem cells, and a process called conditioning is used to help eliminate the damaged cells so they can be replaced by the infusion of the patient’s genetically modified stem cells. Once they become engrafted into the patient’s bone marrow, they reproduce into a lot of daughter cells, and all of those daughter cells contain the CTNS gene. Those cells are able to express the healthy, functional, active protein throughout the body to correct the metabolic problem caused by cystinosis.
“What we’re seeing in the adult patients who have been dosed to date is the consistent and sustained engraftment of our genetically modified cells, 17 to 27 months post-gene therapy, so that’s very encouraging and positive,” says Rihda, the chief medical officer at AVROBIO.
When Janz was 11-years-old, his mother got him enrolled in the trial of a new form of cysteamine that would only need to be taken every 12 hours instead of every six. Two years later, she made sure he was the first person on the list for Cherqui’s current stem cell gene therapy trial.
AVROBIO researchers have also confirmed stabilization or improvement in motor coordination and visual perception in the trial participants, suggesting a potential impact on the neuropathology of the disease. Data from five dosed patients show strong safety and tolerability as well as reduced accumulation of cystine crystals in cells across multiple tissues in the first three patients. None of the five patients need to take oral cysteamine.
Janz’s mother, Barb Kulyk, whom he credits with always making him take his medications and keeping him hydrated, had been following Cherqui’s research since his early childhood. When Janz was 11-years-old, she got him enrolled in the trial of a new form of cysteamine that would only need to be taken every 12 hours instead of every six. When he was 17, the FDA approved that drug. Two years later, his mother made sure he was the first person on the list for Cherqui’s current stem cell gene therapy trial. He received his new stem cells on October 7th, 2019, went home in January 2020, and returned to working full time in February.
Jordan Janz, pictured here with his girlfriend, has a new lease on life, plus a new hair color.
Jordan Janz
He notes that his energy level is significantly better, and his mother has noticed much improvement in him and his daily functioning: He rarely vomits or gets nauseous in the morning, and he has more color in his face as well as his hair. Although he could finish his participation at any time, he recently decided to continue in the clinical trial.
Before the trial, Janz was taking 56 pills daily. He is completely off all of those medications and only takes pills to keep his kidneys working. Because of the damage caused by cystinosis over the course of his life, he’s down to about 20 percent kidney function and will eventually need a transplant.
“Some day, though, thanks to Dr. Cherqui’s team and AVROBIO’s work, when I get a new kidney, cystinosis won’t destroy it,” he concludes.
New study: Hotter nights, climate change, cause sleep loss with some affected more than others
Data from the National Sleep Foundation finds that the optimal bedroom temperature for sleep is around 65 degrees Fahrenheit. But we may be getting fewer hours of "good sleepin’ weather" as the climate warms, according to a recent paper from researchers at the University of Copenhagen, Denmark.
Published in One Earth, the study finds that heat related to climate change could provide a “pathway” to sleep deprivation. The authors say the effect is “substantially larger” for those in lower-income countries. Hours of sleep decline when nighttime temperature exceeds 50 degrees, and temps higher than 77 reduce the chances of sleeping for seven hours by 3.5 percent. Even small losses associated with rising temperatures contribute significantly to people not getting enough sleep.
We’re affected by high temperatures at night because body temperature becomes more sensitive to the environment when slumbering. “Mechanisms that control for thermal regulation become more disordered during sleep,” explains Clete Kushida, a neurologist, professor of psychiatry at Stanford University and sleep medicine clinician.
The study finds that women and older adults are especially vulnerable. Worldwide, the elderly lost over twice as much sleep per degree of warming compared to younger people. This phenomenon was apparent between the ages of 60 and 70, and it increased beyond age 70. “The mechanism for balancing temperatures appears to be more affected with age,” Kushida adds.
Others disproportionately affected include those who live in regions with more greenhouse gas (GHG) emissions, which accelerate climate change, and people in hotter locales will lose more sleep per degree of warming, according to the study, with suboptimal temperatures potentially eroding 50 to 58 hours of sleep per person per year. One might think that those in warmer countries can adapt to the heat, but the researchers found no evidence for such adjustments. “We actually found those living in the warmest climate regions were impacted over twice as much as those in the coldest climate regions,” says the study's lead author, Kelton Minor, a Ph.D. candidate at the University of Copenhagen’s Center for Social Data Science.
Short sleep can reduce cognitive performance and productivity, increase absenteeism from work or school, and lead to a host of other physical and psychosocial problems. These issues include a compromised immune system, hypertension, depression, anger and suicide, say the study’s authors. According to a fact sheet by the U.S. Centers for Disease Control and Prevention, a third of U.S. adults already report sleeping fewer hours than the recommended amount, even though sufficient sleep “is not a luxury—it is something people need for good health.”
Equitable policy and planning are needed to ensure equal access to cooling technologies in a warming world.
Beyond global health, a sleep-deprived world will impact the economy as the climate warms. “Less productivity at work, associated with sleep loss or deprivation, would result in more sick days on a global scale, not just in individual countries,” Kushida says.
Unlike previous research that measured sleep patterns with self-reported surveys and controlled lab experiments, the study in One Earth offers a global analysis that relies on sleep-tracking wristbands that link more than seven million sleep records of 47,628 adults across 68 countries to local and daily meteorological data, offering new insight into the environmental impact on human sleep. Controlling for individual, seasonal and time-varying confounds, researchers found the main way that higher temperatures shorten slumber is by delaying sleep onset.
Heat effects on sleep were seen in industrialized countries including those with access to air conditioning, notes the study. Air conditioning may buffer high indoor temperatures, but they also increase GHG emissions and ambient heat displacement, thereby exacerbating the unequal burdens of global and local warming. Continued urbanization is expected to contribute to these problems.
Previous sleep studies have found an inverse U-shaped response to temperature in highly controlled settings, with subjects sleeping worse when room temperatures were either too cold or too warm. However, “people appear far better at adapting to colder outside temperatures than hotter conditions,” says Minor.
Although there are ways of countering the heat effect, some populations have more access to them. “Air conditioning can help with the effect of higher temperature, but not all individuals can afford air conditioners,” says Kushida. He points out that this could drive even greater inequity between higher- and lower-income countries.
Equitable policy and planning are needed to ensure equal access to cooling technologies in a warming world. “Clean and renewable energy systems and interventions will be needed to mitigate and adapt to ongoing climate warming,” Minor says. Future research should investigate “policy, planning and design innovation,” which could reduce the impact of sweltering temperatures on a good night’s sleep for the good of individuals, society and our planet, asserts the study.
Unabated and on its current trajectory, by 2099 suboptimal temperatures could shave 50 to 58 hours of sleep per person per year, predict the study authors. “Down the road, as technology develops, there might be ways of enabling people to adapt on a large scale to these higher temperatures,” says Kushida. “Right now, it’s not there.”