How emerging technology can right a wrong

Fetal lamb in artificial womb, 2017

In his watery parlor, baby #032533 was awakened by the violence of his own hiccups. He drew his knees closer to his chest and balled his hands into fists. Above the imperceptible hum of electric motors, he could hear his own tiny heartbeat, but not a second, adult heartbeat that other babies experience. Six weeks earlier he had begun hearing muffled sounds from the outside world. But his ability to flex his fingers was an interesting new development. 

According to Gonzales v. Carhart, a Supreme Court decision from 2007, baby #032533 had officially taken on “the human form.” He was 12 weeks old and had lived his entire life in a lab. There were humans around, interacting with the machinery that powered his artificial womb. But none ever talked to him. None caressed him or loved him. The year is 2033 and he lives in an artificial womb, separated from a mother he had never known.

This baby is imaginary. But the scenario is not. The idea of an artificial womb is decades old, but its first success was achieved in Philadelphia in 2017. Researchers kept a fetal lamb alive for nearly a month. More recently, Israeli scientists announced that they kept 250 embryonic mice alive in artificial wombs--some halfway into their second trimester. Soon, these breakthroughs could be applied to humans.

Artificial womb technology represents a quantum leap in neonatal care. Like all technology, it offers both moral advancement and hideous, dehumanizing misapplications. Fifty years ago, the average age of viability for premature babies was barely 30 weeks. By 1987 James Gill set a new record--surviving a premature birth at 21 weeks. But this astounding rollback of the age of viability has essentially stalled there.

Tiny, undeveloped lungs are damaged by the air-pressure needed to help them breathe. Artificial womb technology could allow the child’s lungs to continue developing outside the mother without the damage of premature inflation. This has the potential to roll back fetal viability into the first trimester of pregnancy. It also has the potential to dramatically change American jurisprudence.

Last Monday (May 17, 2021), the Supreme Court of the United States (SCOTUS) announced that it would hear the case titled Dobbs v. Jackson. The case involves a Mississippi women’s health law enacted in 2018. To protect women from the extreme risks of late term abortions and to exercise the state’s interest in protecting the lives of its youngest citizens, Mississippi legislators passed the Gestational Age Act which banned most abortions after 15 weeks. 

This was a gutsy move. They all knew that the law would be challenged in court. Years ago, SCOTUS decided that it would not uphold the state’s interest in protecting life prior to the age of viability. That is why Wyoming statute prohibits abortions after viability, but no sooner. Two bills last January sought to change that law. But both were denied a floor vote.

The Mississippi legislature, however, did not shrink from the fight. It passed the bill, fully intending to defend it in court. Sure enough, a federal judge enjoined its enforcement within 24 hours of the governor’s signature, and that judgment was upheld in the Fifth Circuit Court of Appeals.

Now SCOTUS has accepted the case but narrowed the question significantly. Of three questions presented by Mississippi Attorney General, Lynn Fitch, the justices agreed to take up only one: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”

Ever since Roe, the Court has treated “viability” as the earliest stage when a state can exercise its interest in protecting citizens. But “viability” has always been a fuzzy and subjective boundary. It is a moving target that depends, not on fundamental human rights, but on ever-changing technology. As science has advanced during the past five decades, the court’s wisdom has not kept up.

2021 Supreme Court

SCOTUS’ tone deafness to scientific advances has held America back from keeping up with the moral advances of the civilized world. When it comes to abortion policy, America ranks in the bottom five percent. A 2014 study of 198 nations found that the “clear norm among countries that permit elective abortion is to limit abortion to before 20 weeks gestation, and elective abortion is more commonly limited to 12 weeks (the first trimester).” By contrast, America finds herself in the barbaric company of China, North Korea and Viet Nam, where abortion remains unrestricted until the moment of birth.

It is unjust for SCOTUS to keep any state from protecting its citizens based on bad science. Future generations will want to know how the court could deny human rights simply because of technological ignorance. They will not receive a satisfactory answer. Dobbs v. Jackson is an opportunity to acknowledge their right to an answer, and to join the civilized world.