Premature babies are surviving earlier than in the Roe v. Wade era, potentially shifting the Supreme Court’s guidepost of when abortion can legally be banned.
When the court legalized abortion four decades ago, babies born before 28 weeks gestation didn’t typically live. Now, medical professionals consider the point of fetal viability to be 24 weeks. But survival rates are rising for babies born even earlier at 22 weeks.
That’s a victory for neonatal medicine, which has seen major advances in supporting premature babies until their hearts and lungs are developed enough to function properly. But it also could carry some legal implications in the ever-impassioned abortion wars.
At issue is the concept of fetal viability — the point at which a baby can survive outside the womb. In its Roe decision, the Supreme Court left open the door for states to ban abortions, but only after the point of viability.
But the justices didn’t spell out exactly when viability occurs. So as medical advancements improve prospects for premature babies, viability becomes a shifting standard. And anti-abortion activists think that could help them get abortion banned earlier in pregnancy.
“The more we find out — the more medical science improves — it simply strengthens our hand,” said David Prentice, vice president of the Charlotte Lozier Institute, research arm of the Susan B. Anthony List, an anti-abortion group.
If medical professionals start considering viability to begin at 22 weeks rather than 24, that could affect when a woman can have an abortion in states prohibiting the procedure past viability. Twenty states have such laws on the books, according to the Guttmacher Institute.
And it could bolster arguments for a slew of new laws known as “fetal pain” measures, which are premised on the idea that a fetus can feel pain midway through pregnancy.
These laws — passed by about a dozen states over the last few years — ban abortion at 22 weeks gestation, earlier than viability as it’s currently understood. The House will vote next week on a federal version.
Courts have blocked the laws in a few states, and the Supreme Court refused last year to take up Arizona’s version. But many think it may at some point consider the issue, which raises the viability question. That’s because 22 weeks is a gray area — a point at which a significant number of premature babies can now survive, although most still die.
Doctors are currently divided on whether to resuscitate babies born that prematurely, but a new study could give them more reasons to try. Nearly a quarter of babies born at 22 weeks survived when given medical treatment, in a study of 5,000 premature babies published Thursday in the New England Journal of Medicine.
Some members of medical associations, including the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics, are already discussing whether to consistently recommend treatment for babies born at 23 weeks.
“As we’ve gone along, we’ve made incremental steps in providing better care to babies,” said Kristi Watterberg, chairwoman of the academy’s committee on fetus and newborn. “Because of that, our theoretical lower limit of survival continues to be a changing target.”
Those in favor of legal abortion don’t want any abortion restrictions at a defined point in pregnancy. They say the Roe ruling means lawmakers should leave the decision entirely up to women and their doctors.
“These are complicated medical decisions and it’s up to a doctor to determine when viability occurs, not a politician sitting in a statehouse somewhere,” said Julie Rikelman, litigation director for the Center for Reproductive Rights.
The vast majority of abortions are performed early in pregnancy, well before the point at which states limit them. But abortion rights advocates still view the state bans as a way for opponents to slowly chip away at access.
“We would not want to set a bright line,” said Gretchen Borchelt, vice president for health and reproductive rights at the National Women’s Law Center. “The provider can determine whether the fetus is viable.”
But Borchelt admits that as medical advances push the point of viability earlier, it could help the case for banning abortion earlier than 24 weeks. “Yes it would,” she said.
Meanwhile, conservatives, who aren’t always known for embracing science, think it is strengthening their case on the abortion question. The generally accepted point of viability has moved back from 28 weeks to 24 weeks since the Roe ruling — about one week for every decade, Prentice noted.
“What we’re finding is a week earlier survival for every decade since Roe,” he said. “It simply continues to strengthen the case.”
