Abortion in America
New Study Could Lead to Changes in Abortion Law

A new study suggests that babies could be viable sooner than ever before. The New England Journal of Medicine published a study on about 5,000 premature babies, and found that around one-fourth of those who were born at 22 weeks and given intensive care survived. The current standard of medical viability is 24 weeks, so the consequences of demonstrating earlier viability could be huge for the abortion debate, as WaPo notes:

Edward Bell, a pediatrics professor at the University of Iowa and a co-author of the study, told the New York Times he considers 22 weeks a new marker of viability — a newborn’s potential to survive outside the womb. […]

The vast majority of the hospitals in the study agree with Bell — all but 4 of the 24 institutions examined offered active care to all or some of the babies born at 22 weeks. If he is right that 22 weeks has become the new age of viability, it could have implications far beyond the delivery room.

That’s because the Supreme Court has long crafted its abortion rulings around the idea of viability. In Roe v. Wade the court ruled that states could not restrict abortions before the 28th week of pregnancy, at the time thought to be the earliest a newborn could survive on its own.

The 1992 case Planned Parenthood v. Casey, acknowledging that advances in neonatal care made survival of even more premature babies possible, detached the “viability” marker from the 28-week standard but left the sentiment of the original ruling intact: “We reaffirm … the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State,” read the majority opinion.

As technology advances, the abortion debate is going to shift. The first technology relevant to the debate was the ultrasound, which, among other things, helped bring Bernard Nathanson, a founding member of NARAL, to the pro-life cause. Now, improved intensive-care capabilities are pushing viability earlier, with profound implications for the law (and likely cultural perceptions as well). Nobody can predict can far new tech will push back viability, but if the standard does become 22 weeks, states will be able to restrict legal abortion to a narrower window of time. And the further the window shrinks, the more abortion proponents will be put on the back foot.

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