Abortions Before Fetal Viability Are Legal: Might Science and a Change on the Supreme Court Undermine That?

The United States Supreme Court Building in Washington, D.C.

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This article is part of the magazine, "The Future of Science In America: The Election Issue," co-published by LeapsMag, the Aspen Institute Science & Society Program, and GOOD.

Viability—the potential for a fetus to survive outside the womb—is a core dividing line in American law. For almost 60 years, the Supreme Court of the United States has struck down laws that ban all or most abortions, ruling that women's constitutional rights include choosing to end pregnancies before the point of viability. Once viability is reached, however, states have a "compelling interest" in protecting fetal life. At that point, states can choose to ban or significantly restrict later-term abortions provided states allow an exception to preserve the life or health of the mother.

This distinction between a fetus that could survive outside its mother's body, albeit with significant medical intervention, and one that could not, is at the heart of the court's landmark 1973 decision in Roe v. Wade. The framework of viability remains central to the country's abortion law today, even as some states have passed laws in the name of protecting women's health that significantly undermine Roe. Over the last 30 years, the Supreme Court has upheld these laws, which have the effect of restricting pre-viability abortion access, imposing mandatory waiting periods, requiring parental consent for minors, and placing restrictions on abortion providers.

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Josephine Johnston
Josephine Johnston is Director of Research and a Research Scholar at The Hastings Center, an independent bioethics research institute in Garrison, New York. She works on the ethics of emerging biotechnologies, particularly as used in human reproduction, psychiatry, genetics, and neuroscience. Her scholarly work has appeared in medical, scientific, policy, law, and bioethics journals, including New England Journal of Medicine, Science, Nature, Hastings Center Report, and Journal of Law, Medicine and Ethics. She has also written for Stat News, New Republic, Time, Washington Post, and The Scientist, and is frequently interviewed by journalists. Ms. Johnston holds degrees in law and bioethics from the University of Otago in New Zealand. Her current research addresses developments in genetics, including prenatal testing, gene editing, and newborn sequencing.
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Recent immigration restrictions have left many foreign researchers' projects and careers in limbo—and some in jeopardy.

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This article is part of the magazine, "The Future of Science In America: The Election Issue," co-published by LeapsMag, the Aspen Institute Science & Society Program, and GOOD.

When COVID-19 cases were surging in New York City in early spring, Chitra Mohan, a postdoctoral fellow at Weill Cornell, was overwhelmed with worry. But the pandemic was only part of her anxieties. Having come to the United States from India on a student visa that allowed her to work for a year after completing her degree, she had applied for a two-year extension, typically granted for those in STEM fields. But due to a clerical error—Mohan used an electronic signatureinstead of a handwritten one— her application was denied and she could no longerwork in the United States.

"I was put on unpaid leave and I lost my apartment and my health insurance—and that was in the middle of COVID!" she says.

Meanwhile her skills were very much needed in those unprecedented times. A molecular biologist studying how DNA can repair itself, Mohan was trained in reverse transcription polymerase chain reaction or RT-PCR—a lab technique that detects pathogens and is used to diagnose COVID-19. Mohan wanted to volunteer at testing centers, but because she couldn't legally work in the U.S., she wasn't allowed to help either. She moved to her cousin's house, hired a lawyer, and tried to restore her work status.

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Lina Zeldovich
Lina Zeldovich has written about science, medicine and technology for Scientific American, Reader’s Digest, Mosaic Science and other publications. She’s an alumna of Columbia University School of Journalism and the author of the upcoming book, The Other Dark Matter: The Science and Business of Turning Waste into Wealth, from Chicago University Press. You can find her on http://linazeldovich.com/ and @linazeldovich.

The White House in Washington, D.C.

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This article is part of the magazine, "The Future of Science In America: The Election Issue," co-published by LeapsMag, the Aspen Institute Science & Society Program, and GOOD.

We invited Nobel Prize, National Medal of Science, and Breakthrough Prize Laureates working in America to offer advice to the next President on how to prioritize science and medicine in the next four years. Almost universally, these 28 letters underscore the importance of government support for basic or fundamental research to fuel long-term solutions to challenges like infectious diseases, climate change, and environmental preservation.

Many of these scientists are immigrants to the United States and emphasize how they moved to this country for its educational and scientific opportunities, which recently have been threatened by changes in visa policies for students and researchers from overseas. Many respondents emphasize the importance of training opportunities for scientists from diverse backgrounds to ensure that America can continue to have one of the strongest, most creative scientific workforces in the world.

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Aaron F. Mertz
Aaron F. Mertz, Ph.D., is a biophysicist, science advocate, and the founding Director of the Aspen Institute Science & Society Program, launched in 2019 to help foster a diverse scientific workforce whose contributions extend beyond the laboratory and to generate greater public appreciation for science as a vital tool to address global challenges. He completed postdoctoral training in cell biology at Rockefeller University, a doctorate in physics at Yale University, a master’s degree in the history of science at the University of Oxford as a Rhodes Scholar, and a bachelor’s degree in physics at Washington University in St. Louis.