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Blurred Lines: Disentangling the Concept of Fetal Viability from Abortion Law

Published:April 02, 2018DOI:https://doi.org/10.1016/j.whi.2018.02.006
      Consider this: In 1971, the 14th edition of Williams Obstetrics, page 493 stated: “attainment of fetal weight of 1000 grams or fetal age of approximately 28 weeks is widely used as the criterion of viability” (
      • Hellman L.M.
      • Pritchard J.A.
      Williams obstetrics.
      ). Fast forward to 2015 when a study from
      • Rysavy M.A.
      • Li L.
      • Bell E.F.
      • Das A.
      • Hintz S.R.
      • Stoll B.J.
      • Higgins R.D.
      Between-hospital variation in treatment and outcomes in extremely preterm infants.
      suggested that some preterm infants (mean birth weight of 510 g) could survive at 22 weeks gestation with active neonatal treatment. Regardless of the scientific nuances of these two documents, one indisputable conclusion is that the 4.5 decades between their publications have seen remarkable advancement in obstetrical management and infant resuscitation. Those advancements effectively exiled page 493 to the purgatory of former facts, a place where they serve as historical markers for measuring our achievements in medicine. However, Williams’ definition of viability has had one lasting and unforeseen consequence.
      This text also happened to be the medical reference that Justice Blackmun cited in the majority opinion of Roe v. Wade in 1973. In the details of that decision, Blackmun referenced page 493 when he defined viability and wrote this sentence: “If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother” (

      Roe v. Wade. (n.d.). Available: www.law.cornell.edu/supremecourt/text/410/113. Accessed: March 14, 2016.

      ). Thus, when the U.S. Supreme Court legalized abortion, it also entangled it with the concept of viability. In doing so, it allowed legislatures to use the definition of viability to limit the reproductive choices of women in America.
      The problem with using the term viability in a binary fashion is that it assumes a clear line separating viable and unviable fetuses. However, obstetricians and pediatricians know that this line is blurry at best and that, in reality, rigid black-and-white cutoffs do not describe the complexity of viability and are wholly inadequate to guide decisions during this window. In the Rysavy study, the 22-week fetuses that were given the most aggressive medical management available, both before and after delivery, had an overall survival rate of 23% (
      • Rysavy M.A.
      • Li L.
      • Bell E.F.
      • Das A.
      • Hintz S.R.
      • Stoll B.J.
      • Higgins R.D.
      Between-hospital variation in treatment and outcomes in extremely preterm infants.
      ). However, this definition of survival is void of real-life considerations. It is analogous to diagnosing someone with skin cancer, and referring to a range of outcomes from an excisable basal cell lesion to widely metastasized stage 4 melanoma. Medical providers do not give medical counsel and treatments based on nebulous terms. Instead, they add meaning to words like viability and cancer, with a discussion that include other terms like severity, possibility, morbidity, and quality of life.
      A meaningful discussion of neonatal viability includes not just survival, but honest and candid dialogue with the woman and her family about what kind of life to expect. Parents want to know if their child would be able to see, talk, walk, interact with their family; will they suffer or be in pain? A series of individual values and preferences constitute our own unique definitions of viability, and life.
      Our obstetrical wards are beset daily with cases that test the definition of viability. Severe fetal malformations like anencephaly have a live birth rate of 72%, even though fewer than 5% will survive past 6 days (
      • Jaquier M.
      • Klein A.
      • Boltshauser E.
      Spontaneous pregnancy outcome after prenatal diagnosis of anencephaly.
      ). Still others present with defects like a hypoplastic left ventricle that requires several complex open surgeries for long-term survival to be possible. And perhaps most simply, absent of anomalies, severely premature infants can have outcomes ranging from almost normal development to severe physical and neurological disabilities that require lifelong medical interventions and around the clock care. Again, in the study by Rysavy et al., the rate of survival without moderate or severe morbidity in those 22-week-old infants was 9%. Finally, counseling to convey the best estimations of these outcomes to a family is made further uncertain by the margin of error when using ultrasound imaging to estimate fetal weight (
      • Stefanelli S.
      • Groom K.M.
      The accuracy of ultrasound-estimated fetal weight in extremely preterm infants: A comparison of small for gestational age and appropriate for gestational age.
      ).
      Tying abortion provision to the word viability today is as misguided as it was to tie it to a specific trimester in 1973. There was no true definition of viability then, and as long as medicine strives to treat every patient uniquely, there will never be one. Equally troublesome is the broader principle of linking abortion provision with viability. Abortion is an individual and complex decision that women make for a range of reasons. For women making the choice to terminate for an anomaly or a pregnancy complication, they seek abortion services out of concern for their health or for a pregnancy that may never meet a binary definition of viability, regardless of gestational age achieved.
      For the vast majority of women who choose an abortion, the decision happens in the first trimester, long before questions of viability (
      • Jatlaoui T.C.
      Abortion surveillance — United States, 2014.
      ). The decision these women make to terminate a pregnancy reflects the complexities of real life, and not simple duality of language. The spectrum of considerations that influence their decision includes their readiness to care for a child due to school or work, their financial situation, the presence of a partner, and the size of their existing family (
      • Finer L.B.
      • Frohwirth L.F.
      • Dauphinee L.A.
      • Singh S.
      • Moore A.M.
      Reasons U.S. women have abortions: quantitative and qualitative perspectives.
      ). Superimposing an unrelated concept of fetal outcome on reproductive choice has life-altering consequences for millions of women.
      Currently, 43 states place gestational age limits on abortion (
      • Guttmacher Institute
      State policies in brief: State policies on later abortions.
      ). Of these states, 17 states place it at “viability,” undefined, much like the Supreme Court continues to do. The remaining 26 have chosen specific gestational ages. Some, such as New York, use 24 weeks after fertilization, a gestational age that until recently (
      • Rysavy M.A.
      • Li L.
      • Bell E.F.
      • Das A.
      • Hintz S.R.
      • Stoll B.J.
      • Higgins R.D.
      Between-hospital variation in treatment and outcomes in extremely preterm infants.
      ) was the widely accepted cutoff for viability in the highest acuity neonatal intensive care units. A couple, like Virginia, have chosen “the third trimester,” perhaps an anachronism from Blackmun's language in 1973. The heterogeneity of how judicial language codifies into state law seems to represent a differing interpretation of “viability” by lawmakers. However, ulterior motives may undertone some of these limits.
      Seventeen states have chosen to limit abortion at 20 weeks after fertilization (22 weeks after the last menstrual period) with most under the premise the fetus can feel pain after this point. These laws coincide with the explosion of legislative attempts to undermine abortion provision through restrictions and onerous regulations unfounded on medical evidence (

      Policy trends in the States: 2016. (2016). Available: www.guttmacher.org/article/2017/01/policy-trends-states-2016. Accessed: January 14, 2018.

      ). Strong evidence suggests that fetal pain laws are unsupported by science (
      • Lee S.J.
      • Ralston H.
      • Drey E.A.
      • Partridge J.
      • Rosen M.A.
      Fetal pain: A systematic multidisciplinary review of the evidence.
      ). Nonetheless, the U.S. House of Representatives also passed a bill last fall that would ban all abortions at greater than 22 weeks under this false premise of fetal pain. In our current political climate, definitions and concepts of viability are interpreted to extremes to legally restrict a woman's access to abortion care. Today, a woman who experiences preterm labor at 22 weeks may not have the right to consider what neonatal outcomes are important to her. The state may make the choice for her.
      The trajectory of medical progress is such that it can be assumed that we will continue to find better ways of treating preterm neonates. If you wanted to draw a line for viability today, you can almost certainly count on needing to erase it and redraw it later. But moving this imagined line is also potentially moving a very real line for the women in this country. As abortion provision finds itself entangled with viability, policymakers should not let progress in one area of medicine unintentionally affect the ability to care for patients in another. As legislatures and courts grapple with the meaning of the word viability, we should not lose sight of the women and families that will live with that meaning and its consequences.

      References

        • Finer L.B.
        • Frohwirth L.F.
        • Dauphinee L.A.
        • Singh S.
        • Moore A.M.
        Reasons U.S. women have abortions: quantitative and qualitative perspectives.
        Perspectives on Sexual and Reproductive Health. 2005; 37: 110-118
        • Guttmacher Institute
        State policies in brief: State policies on later abortions.
        (Available:)
        www.guttmacher.org/statecenter/spibs/spib_PLTA.pdf
        Date: 2016
        Date accessed: March 14, 2016
        • Hellman L.M.
        • Pritchard J.A.
        Williams obstetrics.
        14th edition. Appleton-Century-Crofts, Norwalk, CT1971
        • Jaquier M.
        • Klein A.
        • Boltshauser E.
        Spontaneous pregnancy outcome after prenatal diagnosis of anencephaly.
        BJOG: An International Journal of Obstetrics & Gynaecology. 2006; 113: 951-953
        • Jatlaoui T.C.
        Abortion surveillance — United States, 2014.
        MMWR. Surveillance Summaries. 2017; 66: 1-48
        • Lee S.J.
        • Ralston H.
        • Drey E.A.
        • Partridge J.
        • Rosen M.A.
        Fetal pain: A systematic multidisciplinary review of the evidence.
        JAMA. 2005; 294: 947-954
      1. Policy trends in the States: 2016. (2016). Available: www.guttmacher.org/article/2017/01/policy-trends-states-2016. Accessed: January 14, 2018.

      2. Roe v. Wade. (n.d.). Available: www.law.cornell.edu/supremecourt/text/410/113. Accessed: March 14, 2016.

        • Rysavy M.A.
        • Li L.
        • Bell E.F.
        • Das A.
        • Hintz S.R.
        • Stoll B.J.
        • Higgins R.D.
        Between-hospital variation in treatment and outcomes in extremely preterm infants.
        New England Journal of Medicine. 2015; 372: 1801-1811
        • Stefanelli S.
        • Groom K.M.
        The accuracy of ultrasound-estimated fetal weight in extremely preterm infants: A comparison of small for gestational age and appropriate for gestational age.
        Australian & New Zealand Journal of Obstetrics & Gynaecology. 2014; 54: 126-131

      Biography

      Leo Han, MD, MPH, is an Assistant Professor in the Department of Obstetrics and Gynecology at Oregon Health and Science University. His research interests include contraception development, abortion, and medical information on the web.

      Biography

      Maria I. Rodriguez, MD, MPH, is an Associate Professor in the Department of Obstetrics and Gynecology at Oregon Health and Science University. Her research focuses on the impacts of reproductive health outcomes policy and disparities among the Medicaid population.

      Biography

      Aaron B. Caughey, MD, PhD, is Professor/Chair, Department of Obstetrics and Gynecology at Oregon Health and Science University School of Medicine. He utilizes clinical epidemiology, health economics, health policy, and the decision sciences to examine obstetric care and outcomes.