Late Abortion and Technological advances in fetal viability.

The most recent data indicate that only about 200 abortions a year, or one-tenth of one percent of the total, are performed after 24 weeks of gestation, the traditional line dividing the potentially viable fetus from one that has no chance of surviving outside of the womb; only three-tenths of one percent are performed after 22 weeks; and fewer than one percent, at mare than 20 weeks. (1) Nevertheless, recent advances in neonatal technology and scattered reports of babies born alive after an abortion have focused considerable attention in the popular media on ethical problems that might be associated with very late abortions and have raised questions about the ways doctors determine potential viability. (2) Supreme Court Justice Sandra Day O'Connor, in her dissent from the majority opinion in the Akron abortion case, went so far as to say that medical advances were blurring the question of potential survival of the fetus outside the womb to such a degree that the Supreme Court's 1973 ruling legitimizing abort ions of nonviable fetuses should be reconsidered. (3) The issue of late abortion was also a subject of discussion in two seminars last year that drew physicians, reproductive scientists, lawyers and ethicists into discussions of the new technologies and ethical issues surrounding reproduction. (4) To cast some additional light on this issue, Perspectives invited four individuals who have been involved professionally in the abortion field for a number of years to discuss the question of late abortions from the point of view of their own areas of expertise.

The Editors

Some Legal Considerations

By Nancy K. Rhoden

Public attention has recently been focused on the way in which advances in medical technology are changing the point in pregnancy at which a fetus can survive outside the womb. As doctors fight to save premature infants born at only 24 weeks' gestation, their moral ambivalence about inducing abortions in the 23rd week may increase. Indeed, medical developments of the last decade have altered the parameters of a woman's right to obtain an abortion, since under the Roe v. Wade decision, states can prohibit abortion, except to preserve the woman's life or health, after the time of fetal viability. (5) In 1973, viability was generally considered to be around 28 weeks. Today it is around 24. As the threshold of viability becomes established earlier in pregnancy, a serious question arises of where these new medical developments will take us, and whether the viability standard, which initially allowed abortions during the first two-thirds of pregnancy, will some time in the future allow the procedure to be performed only during a narrow--perhaps too narrow--time span.

It is important, however, to be realistic about changes in medical technology. In her dissent in a recent abortion case, Justice O'Connor suggested that medical advances might lead to fetuses' becoming viable in the first trimester in the not-too-distant future. (6) Such a development may occur some day--just as a cure for cancer may be discovered or animal-human transplants may be perfected. But the actual situation is that over the past decade, the threshold of viability has shifted backwards by several weeks. It may shift further, or it may not. While there are isolated reports of infants surviving who are born at 23 weeks' gestation, many experts doubt that the current threshold will be superseded without the development of a true artificial-womb technology. At any rate, at present the real issue is not a dramatic alteration in the time of viability, but slow, incremental changes that may push the threshold back by a week or two.

Given these medical realities, why are technological advances suddenly the subject of so much concern? One reason is that the results of amniocentesis are not available until the 19th or 20th week of pregnancy. Chorionic villi biopsy, a new and still experimental technique of genetic diagnosis that can be performed in the first trimester, may soon alleviate the problem of late diagnoses of fetal defects. It will not eliminate it entirely, however, because this technique docs not diagnose neural tube defects, and because some high-risk women will not obtain prenatal care early enough to have the new test. Leaving aside fetal anomalies, another reason for concern involves prospects for future technological developments. What if, in 10 or 20 years, fetuses are viable at 22, 20 or 19 weeks' gestation? Will states then be able to restrict a woman's right to obtain an abortion at each new time of fetal viability, and should they be able to do so? Why, after all, should fetal viability be determinative?