Donald Trump’s confusion aside, you might think the abortion debate in America is deadlocked. The term people use for the legal status of Roe vs. Wade is “settled.”
But a scientific advance could soon shake its very foundations. One of those foundations, legally and morally, is the viability of the fetus — or what we call her when the topic isn’t abortion: the baby. (Ever hear of a “fetus bump”?)
In their 1973 Roe ruling, the justices said abortion should be broadly legal before the prenatal child can live outside her mother, but could be broadly restricted after this time. In 1973, viability came in the third trimester. But with today’s technology, viability is at 21 weeks, five days.
And dropping.
This technological shift presents us with a puzzle. How could a 23-week-old prenatal child have rights worthy of legal protection in 2016, but not in 1973? Also, if a 23-weeks pregnant woman traveled from New York City to Botswana, the child she carried inside her would lose its rights worthy of protection during the trip. Strange things happen when we tie the value of human beings to a society’s technology.
Some respond by noting the prenatal child is “totally dependent” on her mother pre-viability, but this also presents a puzzle. An astronaut tethered to a spaceship is “totally dependent,” but we don’t consider her less valuable because of such dependence. Abortion is the one issue where many progressives side with autonomy and privacy over government’s duty to protect the vulnerable.
But the viability standard is the law of the land, and this means advances in science will soon change the debate in dramatic ways. I spent much of 2006-2007 doing dissertation research with physicians who work to save premature babies, and I was surprised to learn that their neonatal technology had hit a wall.
Mostly because of the immaturity of their lungs, neonatal medicine has struggled for years to move the viability of premature babies beyond 22 weeks. When I asked what technologies might be on the horizon, most neonatologists said something like, “Well, they are working on artificial placentas, but that won’t be here for another 20 years.”
“How far back could viability go with an artificial placenta?” I asked.
“Oh, eventually to about eight to 10 weeks,” they said.
And now, with a breakthrough announced last month, University of Michigan researchers think it could be used with premature babies “in the next five years.”
Let’s be conservative and posit that within 10 years, an artificial placenta will knock back viability to 12 weeks. This means, under the legal framework of Roe, states could restrict abortion beyond 12 weeks. To put this in perspective, Democrats won’t even permit a vote on restrictions beyond 20 weeks.
Twelve weeks may seem extreme, but in reality it is U.S. abortion law that is way outside the norm. Much of Europe restricts abortion beyond week 12, and a whopping 73% of Americans also want abortion restricted beyond that time in pregnancy.
The American public isn’t so much divided over Roe vs. Wade and the world it ushered in as it is ignorant about its logic or implications.
If you’ve heard anything about Roe, you’ve probably heard that it’s “popular.” Yet while seven in 10 Americans support the decision, comparatively few understand what it actually said. Only 62%, for instance, are even aware it was about abortion. For young people, this number falls to 44%.
Many of those who understand Roe have been strongly critical of the 1973 decision — and several of them are supporters of abortion rights.
Linda Greenhouse, who covered the Supreme Court for The New York Times, said “the seven middle-aged to elderly men in the majority certainly didn’t think they were making a statement about women’s rights.” She is joined by liberal Justice Ruth Bader Ginsburg, who argues that the decision’s focus on privacy left out justice for women.
Princeton’s Peter Singer, notoriously pro-choice for both abortion and infanticide, claims Roe short-circuited a legislative process that should have been permitted to unfold. Even Norma McCorvey, the “Jane Roe” who originally brought the case in order to procure abortion rights, strongly disagrees with the decision.
Indeed, the Supreme Court itself has rejected much of Roe. In 1992, for instance, it replaced the privacy framework with state permission to pass restrictive abortion laws, provided such laws did not impose an undue burden on women.
If long-delayed advances in artificial wombs proceed apace, the progressive winds of change will blow even more stiffly against the supposedly inviolable right to abortion, and in defense of the most vulnerable.
Camosy is an associate professor at Fordham University, where he specializes in bioethics. Twitter: @CCamosy
