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Medical advances saving premature babies pose thorny issues for abortion rights advocates

Babies are surviving earlier in pregnancy than ever before, complicating the debate over fetal viability at issue in the Mississippi abortion case before the high court

Zeke Vier was born at less than two pounds in Iowa City this year. (Michael S. Williamson/The Washington Post)

The clock struck midnight as Kourtney Vier was wheeled into the delivery room at the University of Iowa Hospital. She had just crossed the line between her 22nd and 23rd week of pregnancy, and the baby was coming.

“I’m scared,” she cried out to her husband.

Doctors and nurses kept telling her “you’re doing great” and before long, the room erupted into cheers. Zeke Vier — at 1 pound 4 ounces and 11 inches long — had been born.

Vier saw her son for just a few seconds before he was swaddled away to neonatal intensive care. He wasn’t crying, she remembered. But as she looked at his little fingers and toes, she thought about how he would not be alive if she had stayed at the first hospital she had tried near her hometown. “They told me there was nothing they could do,” she recalled, since their policy before 24 weeks of pregnancy was to offer only compassionate care.

Today, at 7 months old, after several surgeries and a bout with infection, Zeke is a chubby baby at 12 pounds who left the hospital in November just in time to meet his older brother for the first time for the holidays.

Babies like Zeke are surviving earlier than once thought possible, intensifying the debate about how early in a baby’s development to use aggressive lifesaving treatments and remaking the debate over abortion. Abortion opponents cite cases like Zeke’s to challenge the concept of fetal viability, a central issue in a case argued earlier this month before the Supreme Court about Mississippi’s abortion restrictions that has the potential to overturn nearly 50 years of abortion precedents.

Why fetal viability is at the center of Mississippi abortion case

The antiabortion movement is harnessing advances in neonatology to suggest that the notion of viability, laid out the Supreme Court’s 1973 ruling on Roe v. Wade that established a constitutional right to abortion, will soon be obsolete as a matter of science and of law. That is playing out one way in the survival of tiny “preemies,” and another way in legislative chambers and courtrooms, where abortion opponents use such developments to chip away at the framework of viability that has undergirded abortion rights for nearly five decades.

The arguments often elide painful realities, among them, that babies surviving at these very early stages of development need extraordinary and costly medical interventions that often have lifetime consequences, including cerebral palsy, deafness, blindness or motor impairment. As a result, these lifesaving efforts are often undertaken on behalf of parents with both the means and the desire to care for them through what may be many challenging years to come.

What is indisputable is that decades of advances in medical treatment have made Roe’s viability threshold a moving target, compressing the timeline by about one week every 10 years from the original 28 weeks. Led by the University of Iowa health system, which has pioneered some of these advances, more hospitals are delivering babies 22 and 23 weeks into pregnancy.

One survey, which includes most U.S. hospitals with the ability to offer care for very premature babies, found the portion of infants born at 22 weeks receiving active treatment rose from 26 percent in 2007 to 58 percent in 2019.

With new scientific advances on the horizon — including artificial wombs in which fetuses could be grown outside the body — some wonder if we are headed to a point where Roe’s viability framework is on a collision course with modern medicine. At that point, it might no longer be far-fetched to imagine even a very premature fetus surviving.

When the Supreme Court heard arguments earlier this month about whether to uphold a Mississippi law that bans abortions after 15 weeks of pregnancy, several conservative justices seemed ready to limit, if not overturn, Roe’s legal framework based on viability.

“The fetus has an interest in having a life,” Justice Samuel Alito Jr. said. “And that doesn’t change, does it, from the point before viability to the point after viability?”

4 takeaways from the Supreme Court arguments on abortion

Elizabeth B. Prelogar, the U.S. solicitor general who represented the Biden administration and argued in support of Jackson Women’s Health Organization, the last abortion clinic in Mississippi, countered that she does not believe “there’s any line that could be more principled than viability.”

“The factors the court would have to think about are what is most consistent with precedent, what would be clear and workable, and would preserve the essential components of the liberty interest,” she argued. “Viability checks all those boxes.”

It is against this backdrop that extremely premature babies like Zeke — along with the work of neonatologists Edward Bell, Matthew Rysavy and their colleagues at the University of Iowa saving babies at ever younger ages — have received such scrutiny from both foes and proponents of abortion rights.

Borderline

Edward Bell graduated from medical school in 1973, the same year of the historic Roe ruling. In that decision, the late Supreme Court Justice Harry A. Blackmun, a former attorney who represented the Mayo Clinic, wrote the opinion that established a woman’s constitutional right to terminate her pregnancy. But it held that the state’s interests in fetal life justified restrictions after the second trimester, which was then considered the threshold of viability.

The line was drawn at around 28 weeks and 1,000 grams, or about 2.2 pounds.

Bell vividly recalls what happened when, as a young medical student, he instinctively tried to save a baby that did not meet those criteria. “I got scolded for resuscitating a baby less than 1,000 grams. That was thought to be the limit,” he said. “Now we have babies at 300 grams [about 10.6 ounces].”

The scientific advances that changed the timeline of viability accelerated as Bell’s career took off. There was no single miracle treatment or discovery, he said, but a series of incremental improvements over time. They included things such as giving steroids to the mother if there are signs of possible premature birth to supercharge the fetus’s lung development, new screenings and care to prevent damage to eyes, a better understanding of oxygen levels needed during the first weeks of life, and new knowledge about how to nourish babies and keep them warm.

By the 1980s and 1990s, babies were regularly surviving at 26 weeks and by the 2000s, around 24 weeks. It wasn’t long before doctors discovered they could save some babies at 23 weeks or even younger.

That has spurred a patchwork of legal, financial and ethical standards among different states, institutions and doctors. Many hospitals have held firm at 23 to 24 weeks and, as a matter of policy, do not provide lifesaving care to babies under that gestational age, arguing it’s unethical to subject a baby, parents and medical providers to such procedures, only to have the child die.

But a growing number are offering intensive care to babies in that difficult “gray zone” of 22 to 23 weeks, resulting in an increasing number surviving.

The youngest premature baby to survive is believed to be Curtis Means, born in July 2020 at 21 weeks, weighing about 420 grams, or 14.8 ounces, less than 1 pound. The attending physician, Brian Sims, expressed surprise that Means beat the odds in a statement issued by the University of Alabama at Birmingham Hospital, where he cared for Means and his mother: “We typically advise for compassionate care in situations of such extremely preterm births.” But Curtis’s mother had asked Sims and other doctors to give him a chance.

In November, after Curtis had been at home for more than seven months and Guinness World Records declared him the world’s most premature baby, he was still on oxygen but able to sit up on his own, and his mother, Michelle “Chelly” Butler, described him as “very active.”

A consensus statement updated in 2019 by the American College of Obstetricians and Gynecologists and the Society for Maternal-Fetal Medicine describes borderline viability as 20 to 25 weeks and six days. Instead of offering specific guidelines, the medical groups note that when “delivery is anticipated near the limit of viability, families and health care teams are faced with complex and ethically challenging decisions.”

Bell, the University of Iowa neonatologist, believes the line of viability is now at 22 weeks and will soon move to 21 weeks.

In a study published in March in the Journal of Pediatrics that followed up a pivotal paper from 2015 in the New England Journal of Medicine, Bell, Rysavy and other researchers surprised the neonatology world by showing that if premature babies born at 22 and 23 weeks are given intensive care, a high percentage can survive. In essence, they demonstrated that part of the previous low survival rates may have been because of hospitals’ reluctance to give active care, making “poor survival a self-fulfilling prophecy,” as one doctor put it in an opinion piece that ran with the study.

“There was a time we thought that there was a biological barrier to viability we were never going to surpass,” Bell said, “but we now know that’s not the case.”

Still, he and other neonatologists acknowledge that development of radical technology such as artificial wombs may be needed to move the needle much further. Part of the challenge is the baby’s lungs, which are not developed enough to breathe room air and may do better in a watery environment.

The field experienced a major breakthrough in 2017 when Emily Partridge, Marcus Davey and their colleagues from Children’s Hospital of Philadelphia announced a prototype of a “biobag” that they had used to gestate sheep. It consisted of a replacement placenta that provides oxygen to the sheep fetus via the umbilical cord and blood that is pumped by the fetus’s heart. Scientists in the Netherlands, funded by an innovation grant from the European Union, are working on a similar technology to create a fluid-based environment and have said their prototype could be ready for use with human fetuses by 2029.

Bioethicists, philosophers and other experts said the development would challenge the whole notion of viability as a marker for when abortion can occur. Today, a person’s right to decide not to be pregnant results in the termination of the fetus. But if science evolves to the point that those two things could be separated, a person might retain the right to cease carrying a fetus but not terminate the fetus.

“The abortion debate as we know it now would change profoundly, if not altogether be ended,” said Christopher Kaczor, a professor of philosophy at Loyola Marymount University, a Catholic institution, who lays out arguments against abortion in his book, “The Ethics of Abortion.”

Kaczor imagines that artificial wombs would likely be used first as part of the intensive care given to premature infants. But that technology would soon become more common: “You could end pregnancy but still have the human being put into the artificial womb.”

Katie Watson, a bioethicist and lawyer at the Northwestern University Feinberg School of Medicine who has served as an adviser on the Planned Parenthood medical board, calls that notion an Orwellian scenario: “If a woman does not want to create another person, suddenly the state takes it out of the womb so the state can raise it or force her to?”

Watson argues that Supreme Court justices always knew that viability would be a moving target and that evolving science does not change that. As a result, she said, Roe’s framework should stand.

She believes viability is not only a fair approach but the best one: “It’s the only biological standard that includes the woman in which the fetus lives. Until that time when they can live separately, it is legally and ethically appropriate to think about both.”

“The Roe court was very wise to not peg its definition of viability to a number,” Watson said. “They intentionally used that flexible language so that the viability standard could move with medicine.”

Bell and Rysavy, the University of Iowa doctors, are cognizant of the collision between treatment advances in neonatology and abortion rights. Medical teams such as theirs go to extraordinary lengths to save and nurse premature babies back to health. Yet some state laws allow — and many physicians support — the right to abortion at those same fetal ages, although as a practical matter, few people abort on or after 21 weeks of gestation.

The researchers did not want to comment on the Supreme Court case, or the new Texas abortion law, which effectively bans abortion after six weeks of pregnancy, except to stress their dismay that their work is being politicized.

“Our work is really completely divorced from the political issue of abortion, and when abortions should be legal,” Bell said. “We’re really focused on what is possible for babies that are born prematurely.”

For Rysavy, the wishes of his patients are what drive his work: “We’re talking about babies where the parents have requested intensive care. It’s their desire to have a baby that survives. In that way, it’s very different than the abortion debate.”

In September, the national obstetricians’ group took a major step recognizing that the viability threshold is moving by recommending that doctors consider giving steroids to a pregnant person at 22 weeks if premature birth appears likely and resuscitation is planned.

Baby Zeke

Kourtney and Riley Vier met in college when she hosted a soup party at the University of Iowa in the fall where everyone was supposed to bring homemade concoctions. Riley brought bread and asked her out. They dated for 11 months and were engaged for seven months before marrying in 2013. She got a job in social media communications, and Riley was working in marketing for an agricultural construction firm.

A few years later, the couple had a boy, Jack, but Kourtney had two miscarriages before becoming pregnant again. At 19 weeks, she feared she’d lose another. The doctor at the nearest hospital in Des Moines noticed her cervix had shortened, indicating a risk for premature birth. Within days, she started bleeding.

“It was lots and lots of blood, and I was like, ’Is there anything you can do?’ and the doctor just said, ‘Not until 24 weeks,’” Kourtney said. “The plan of care was, if you come here before 24 weeks, ‘I’m sorry, your child is going to die.’”

She made an appointment with her regular obstetrician who advised her to go immediately to the University of Iowa Hospitals and Clinics in Iowa City about two hours away. By that time, she was 22 weeks and four days along.

The couple drove that night and when they arrived, doctors gave her a shot of steroids and antibiotics and put her on bed rest to try to delay the delivery as long as possible.

She recalls focusing on the numbers. The University of Iowa has among the highest survival rates for infants born so young. Since 2008, it has admitted 60 premature infants born at 22 weeks gestation with 62 percent survival, and 101 premature infants at 23 weeks gestation with 75 percent survival.

It was at 10:45 p.m. at 22 weeks and six days when the baby would no longer wait. Two hours later, on May 14, Zeke Vier was born.

The first few weeks of his life in the neonatal intensive care unit were tough. Most babies born that early die within the first day, but Kourtney didn’t know that until later. Zeke had three surgeries in the first few weeks. After that, he started retaining fluids and swelled up dangerously. A minor infection followed. Then came pneumonia.

The hospital bill grew into hundreds of thousands of dollars. Luckily, the family’s insurance covered the bill after they paid their deductible.

It wasn’t until Day 66 that Zeke got off the higher-flow ventilator and his care team began to talk about plans for discharge. “It is amazing,” his mother said. “He has come so far, exceeding everyone’s expectations.”

Kourtney, who recently celebrated her 30th birthday, still has moments of upset over what could have been. “I am still angry about it,” she said. “If it was up to some of the doctors, I would be a grieving mother right now.”

By the same token, she is frustrated at those who politicize the heroic measures that allowed her son to survive. She said that with the Mississippi case before the Supreme Court, she thinks a lot about the stories of the people seeking abortions, as well as about people in her position trying to save early pregnancies. “Regardless of what side you are on,” Kourtney said, “that’s a very difficult position.”

“Whenever I hear people talk about, ‘My child was saved at a young gestational age. Shouldn’t that prove abortion at later times is not right?’ I think I don’t want the absolute beauty and amazing advancements of science to be clouded by that. The doctors saving these babies are not trying to change laws,” she said.

After 182 days in the hospital, on Nov. 12, Zeke was ready to go home. He’s still on supplemental oxygen, but on track developmentally for his due-date age of 3 months.

correction

A previous version of this article misstated the findings of a survey published in the Journal of Pediatrics. The study found that 26 percent of infants born at 22 weeks received active treatment in 2007 as compared with 58 percent in 2019.

Roe v. Wade and abortion access in America

Roe v. Wade overturned: The Supreme Court has struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.

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