Abortion rights are largely argued in terms of beliefs derived from religious convictions or political philosophy: a fetus’s “right to life” versus a woman’s “right to choose.” The rights themselves are defined and interpreted as laws that have binding effect on personal behavior. Although activists for life and choice are more driven by belief than by the spirit of scientific inquiry, new information derived from scientific research has the power to inform, and eventually to change, the terms of the arguments, and therefore to affect the laws and their consequences.
How might science impact how abortion is practiced and regulated in the United States in the post-Roe era? One way is through improved understanding of fetal consciousness. Here’s how that might work, beginning with some basic data.
Depending on who’s counting (Centers for Disease Control and Prevention or Guttmacher Institute), between 630,000 and 930,000 abortions are performed annually in the US, down from a 1980s peak of about 1.6 million. Nearly all abortions in the US happen in the first half of pregnancies: 93% within the first 13 weeks and only 1% after 20 weeks (CDC). Very few abortions are performed in the third trimester. Women who seek them out usually do so based on information learned later in their pregnancies — high risk to themselves from a full-term pregnancy, fetal abnormalities that would make life brief and/or severely impaired for the baby if born, radical change in their life circumstances, etc. A third-trimester abortion typically costs $1,000 or more; it’s a significant medical procedure for which there are relatively few providers.
Though few in number, late abortions are emotionally potent and hence featured in anti-abortion campaigns, because some of these abortions involve ending the development of a fetus which bears increasing resemblance to a baby, rather than a tiny mammalian embryo. Although a clear majority of Americans believes that the protections of Roe v. Wade should not have been overturned, support for late abortions is much lower. Roe’s standard — viability — appeals to the broadly popular belief that abortion should be simply legal early, but harder to get later. The problem with viability as a standard, however, is that it is a moving target. Roe’s viability benchmark says that state laws may limit abortion after the point in a pregnancy when prematurely delivered infants could survive outside the womb. This standard has always been somewhat imprecise and has become more contentious over time. In the future the problem will only get worse, complicating any effort Congress or individual states might make to save the protections of Roe v. Wade in legislation.
In 1973 when Roe was decided, few babies born before the end of the second trimester would survive, and few doctors would even try. In the 50 years since Roe was written, medical advances have pushed the frontier of viability earlier and earlier. At least one 21-week-old newborn is known to have survived, and many advanced neonatal facilities now try to save preterm births at 24-28 weeks, with about a 50% success rate. A medical technology company in the Netherlands plans to bring an artificial womb to market in about five years, which would make it possible to sustain fetuses in a very pre-birth-like environment from as young as 21 weeks, floating in a synthetic amniotic fluid, sustained through an artificial placenta. A 21-week-old fetus weighs less than a pound. Could this become the new viability benchmark? Since this artificial womb is a technology product, it’s amenable to improvement; will Version 2.0 work for 18-week-olds, and Version 3.0 for 15-week-olds?
If viability is becoming a less workable standard, what are the other options? There is, of course, the pure “choice” model, which argues that a woman’s right to choose to have an abortion should be absolute and unconditional at any time during her pregnancy, but public support for this is much lower than for a standard that sets some late-term conditions. At the other extreme, abortion opponents offer at least three draconian limits: conception, implantation, and heartbeat, none of which are popular outside their own hardcore ranks. There is also an argument (enshrined in the laws of 22 states) based on when a fetus can experience pain. In many states, these laws bear no relationship to the scientific understanding of how fetal perception of pain works. Another proposed standard is degree of brain development. With enough understanding of brain development, it would be possible to correlate abortion policy decisions to the pregnancy calendar much more consistently than the viability standard allows.
The most important achievement of brain development for purposes of this discussion is the creation of consciousness. Before the emergence of consciousness, a developing fetus has no awareness of itself or its circumstances, and no capacity to construct the experience of pain from negative stimuli, because pain needs consciousness to be perceived. For many pregnant women, abortion is a more bearable choice if it is clearly not inflicting pain or emotional distress on a conscious being. Consciousness isn’t a simple benchmark, but, unlike viability, it is not subject to radical change through better obstetric technology.
For the minority of Americans who believe that personhood begins at conception, implantation, or heartbeat, the differences between viability and consciousness are irrelevant — it’s all murder. For the majority who believe that abortion should be a legal but not unlimited option for pregnant women, the capacity of the brain to achieve consciousness could be a workable replacement for viability.
Scientists have learned a lot about consciousness over the past few decades, although there’s plenty more to learn. First, it exists on a continuum — humans can be alive but completely unconscious, or have minimal consciousness, or basic consciousness, or more-or-less full consciousness. We’ve learned that the brain needs to be running continuously to support consciousness, and that a person needs to be both awake and aware to be conscious. For example, a person in a coma is neither awake nor aware, but a person in a vegetative state can be awake but not aware, and therefore still not conscious. Likewise, a fetus can be measured going through cycles of being awake and asleep, yet not be conscious.
The brain begins as a small cluster of cells a few weeks after conception and is built out over the rest of the pregnancy and well beyond — brain development continues into early adulthood, as the parent of every teen knows. The small cluster of cells which emerges at the top of what will become a spinal cord early in a pregnancy is not yet even a remotely conscious brain; it has no awareness of anything, let alone awareness of itself as a future sapient person. This initial collection of cells is not completely unlike the self-organizing “cerebral organoids” grown in labs to study brains. It cannot be aware of its own loss should it be aborted or simply fail to implant. As the brain develops from an unconscious clump of cells to a structure that increasingly resembles a newborn’s brain, how and when does consciousness emerge, and how could its emergence influence our thinking about abortion?
In the early weeks of pregnancy, a tiny human embryo is barely distinguishable from the embryos of many other species. Fetal electroencephalograms — known as EEGs — show brain electrical activity from about 20 weeks onward. Most of the initial building blocks of the neocortex, the part of the brain most uniquely human, are not in place until about 26 weeks, and at that point they are still not very connected to each other or the rest of the brain and body. Between 24 and 30 weeks a lot of neocortical wiring happens through the thalamus, creating increasing potential for consciousness, but not consciousness itself. The hippocampus, also a contributor to consciousness, gains most of its cells between weeks 22 and 32.
The wiring project can only go so far before birth, because sensory input from the world outside the womb is an essential resource for the wiring and pruning process which develops the capacities of the brain. Until separated from the placenta at birth, a fetus is subjected to very low oxygen levels (equivalent to breathing at the top of Mount Everest) and a cocktail of maternal hormones which keep the level of metabolic activity below that characteristic of a conscious brain. At birth, an extraordinary physiological ballet cuts off the hormones, flips the role of a key signaling molecule, and floods the brain with oxygen, rapidly activating basic consciousness. A full-term newborn is awake, typically, for about two hours until the rush wears off, and then sleeps most of the time for the next several months.
Even at birth a full-term newborn is not nearly as conscious as it will be a few months later: it has only a few seconds of short-term memory, very low-resolution visual and aural senses, and a minimal sense of itself. It has reflexive behaviors such as making eye contact and hunting for a nipple, but these are more instinctive than thoughtful. Human brain development is so complex that it takes decades. The human gestation period — 280 days — is nearly 100 days longer that the average gestation period for other mammals our size. That extra 100 days is mostly needed for brain development, and even at that, giving birth as soon as possible is necessary to just barely get the newborn’s large head through the birth canal. It appears that we’re born just as soon as our brains are put together enough to be jolted into basic consciousness at birth.
An extremely pre-term infant, fighting to survive in its incubator and fiercely loved by its parents, is far less conscious than the parents might imagine. In fact, being prematurely deprived of the quietude of the womb and subjected to the vastly greater stimulations of the world outside the womb may contribute to the higher rate of neurological disorders that extremely pre-term babies experience later in life. As difficult as it is for us to accept, if that tiny newborn dies, it does not experience its own death at all the way a fully conscious adult or child would. Its brain is not yet capable of more than minimal self-awareness. It has reflexes, but not reflection. It induces a strong emotional response in loving parents, but it is not experiencing its life anything like the way they are experiencing theirs. We project adult mental processes onto babies just as we do onto pets, for understandable reasons. If it lives, it gains consciousness (of the newborn kind) around the time that it would have been born full term, and then joins the rapid march to higher consciousness over the next four months, and the longer march over the next 25 years.
For women who must decide whether to proceed with a late abortion, it may be reassuring to know that the brain of the fetus they carry is likely to be incapable of more than minimal awareness before getting a powerful wakeup call during the birth process. This is not to say that it is not a very fraught and sad experience for a woman to choose a late abortion, but it is perhaps not a fraught experience for the fetus. This is not an argument for delaying abortion decisions any longer than necessary — if it’s going to happen, the sooner the better for the mother’s sake — but if an abortion is performed relatively late in pregnancy, it seems unlikely that the fetus is made to consciously experience its own end. Using consciousness as a standard would make it easier to confirm that “life of the mother” and “severe fetal abnormality” reasons for abortion can be applied throughout most of a pregnancy. Over time, scientific research will further refine our understanding of fetal consciousness, and support refinements in policy. The use of a fetal consciousness benchmark could make it easier for states to establish stronger support for a woman’s right to choose over a longer proportion of a pregnancy’s span and inform whatever limits they choose to set.
Even though a fetus is apparently unconscious or minimally conscious until nearly the hour of its birth, there is still the ethical question of how to weigh its interests as a soon-to-be-here person against the interests of the mother as an already-here person. This issue is as ancient as the origin of our species. Homo sapiens evolved two unique traits at roughly the same time: bipedal locomotion and fancy brains. Our hind-legged locomotion was vastly more efficient than four-footed perambulation (and freed up our forepaws to do handy things), but the pelvic architecture it necessitated made giving birth to large-headed babies difficult and risky.
Our fancy brains also take an exceedingly long time to wire up: as mentioned above, human gestation is nearly 100 days longer than that of mammals of comparable size to allow for just part of all that wiring, and then the resulting child is dependent on its parents for years while brain development continues. When a human female becomes pregnant therefore, she is facing a remarkably long period of high risk and major commitment of resources — far longer than she would in any other species. For her genes, the opportunity cost if she bears a child that never reproduces is extraordinarily high.
It should not be surprising that our species barely survived this Rube Goldbergian evolutionary scheme: the genetic record shows that Homo sapiens apparently shrank to as few as 1,000 individuals about 70,000 years ago, and by the time agriculture emerged 10,000 years ago, global human population was still only a few million. It climbed slowly to 600 million in 1700, and then began to accelerate, reaching a billion a century later. Recently we’ve been adding a billion every 12 years. The population explosion of the past two centuries, in light of the vastly long period of almost no growth, is perhaps the most surprising thing that’s happened in the history of our reproduction-challenged species. The bets on bipedal locomotion and big-time mental faculties eventually paid off, but they nearly killed us first, and still may if we don’t tackle the climate crisis a lot better than we have been.
Our evolutionary path has rewarded apparently contradictory behaviors: on one hand, since pregnancies and extended child-rearing are high-risk endeavors that often fail, hunter-gatherer tribes tend to pursue every opportunity to successfully run the gauntlet and bring another child to reproductive adulthood. Healthy women of child-bearing age are a precious resource, and if a tribe loses too many, or if they have too few children, the tribe faces extinction. Not surprisingly hunter-gatherers reward and protect child-bearing women, and also “persuade” them to get started on childbearing as soon as they are able. Just this month, according to CBS News, a 25-year-old herdsman in South Sudan traded 60 cattle for a 14-year-old bride who left school to help feed her starving family by marrying for meat on the hoof, so this remains a current practice.
On the other hand, given the magnitude of risk and the dedication of time and effort required to conceive, bear, and raise each child, a woman has relatively few chances to do so in her lifetime, and therefore should not waste pregnancies on long shots and bad bets. This is the underlying evolutionary logic of a woman’s right to choose. The tension between tribal best reproductive strategies and each woman’s personal best reproductive strategies has remained unresolved through the invention of agriculture, the rise and fall of empires, the establishment of global religions, the development of democracy, capitalism, and the scientific method, and the advent of social media; it is still with us today, as recently confirmed by the tribalized Supreme Court.
Scientists are not going to resolve this tension, but they are informing it. Many (probably most) activists on both sides of the abortion issue are driven more by strongly held beliefs than by the logical outcomes of scientific inquiry. Nevertheless, the better information scientists provide over time can help individual women make their decisions with more precise awareness of what they are deciding, and can help governments and healthcare providers at every level make better decisions to minimize the damage done by the reversal of Roe v. Wade: greater availability of sex education, contraception (including morning-after pills), pregnancy testing, medication abortion pills, travel for abortion, and general reproductive health services.
In the background is the accelerating global trend toward lower birthrates and aging populations, which predicts that global population will peak late in this century and begin to decline. Some countries face rapid population decline sooner and are encouraging people to form families and have more children. If some of the monumental resources that have been dedicated to anti-abortion campaigns could be turned to supporting parents with children instead, that might do more to reduce abortions than any amount of rigging the Federal judiciary. I’m skeptical that this will happen on a large scale, but I’m willing to be surprised.
Informative piece, thanks Tom.
Regarding late-term abortion, CDC’s latest data says that 1.3% percent of abortions are in the 25th week and later. That’s indeed a low percentage. But in absolute terms, 1.3% is a shockingly large number of lives we are talking about: an estimated 6,500 lives per year. Over the course of roughly 50 years of Roe, even accounting for population growth over this time, we could be talking about 250,000 lives. That’s not trivial; thus, those who raise concerns about “late term abortions” shouldn’t be easily dismissed.
Just as pro-life maximalists need to contend with the recent horrific rape of a 9 year old in Ohio, which is now clearly corroborated by a suspect who has confessed, so too do pro-choice maximalists need to contend with the question of whether a pregnant mother should have the unfettered right to terminate a baby which is clearly viable and perhaps even completely healthy, without any third-party attestation that, say, the baby is inviable or delivery puts the life of the mother at risk, etc.
Though I’d love it if unfettered access to abortion truly did result in only an extremely tiny handful of elective abortion late-term as we were once led to believe, it does not in fact appear to be such a tiny handful when the math is done in absolute numbers. It’s 6,500 lives per year. 17 per day. Thus, I do think there is a moral and ethical case to consider reasonable restrictions in the third trimester.
Yes, I’m just a guy. And I’d be completely happy to defer to a vote of all women to vote on this, if it helps. It may surprise many to know that women, by and large, are actually -more- in favor of such restrictions than are men (Pew, Harris/Harvard and other polls show this.)
I think it’s interesting and perhaps fitting that we are just starting this national conversation in which the complexities of science, ethics, healthcare and morality all intermix right now. For the past two and a half years, as you well know, we’ve had national debates on the ethics of mandates and restrictions when healthcare choices affect other peoples’ lives. Note that our lawmakers and governors and many on the progressive left were quite willing to impose restrictive mandates and losses of socialization, learning and liberty on 0-18 year olds to help “prevent” what, at most, is 400 0-18 year-olds who died with (not even primarily due to) COVID. For late term abortions, we are talking about more than 10 times as many lives at stake.
Any age/timespan cutoff is going to be somewhat arbitrary — just as it is for when we should be mature enough to drive, vote, carry arms in war, drink, or see an R rated film. If we pick 15 weeks as many Western European nations do for the end period of unrestricted abortion, technology is sure to advance to make even earlier dates the point of “viability.”
Cards on the table: I’m pro-choice, and very firmly in favor of unrestricted abortion through at least 15 weeks, but not maximalist enough to insist that, say, a baby one day before delivery should have its life ended solely by a “my body, my choice” individual decision. I’m not maximalist about it, and can certainly live with the law as WA currently defines it. I still think “safe, legal and rare” are the right policy goals, and “rare” can be achieved through other means too, like education. I am in favor of something akin to the current French law, which allows unrestricted abortion up to X weeks (they chose 14; the 14-20 week range seems reasonable to me), but after that, it should require the attestation of two doctors. Exceptions should in my view always be permissible, but the new life has worth.
So, Steve, could you relate that to the article? I thought the article made some very interesting points.
Thought I did, but sure:
If I’m understanding it properly, Tom is noting that one of the milestones in gestation that might help inform when the life of a fetus has equal rights to that of a mother in the “my body, my choice” decision is the arrival of fetal consciousness. He notes, correctly I think, that our understanding of that is based on science, but that science itself is messy and our understanding will change over time. Thus far, scientific consensus, if there is such a thing, seems to center on the 24th through 28th week for the arrival of fetal consciouness, e.g., Scientific American: https://www.google.com/search?q=when+does+fetal+consciousness+begin&oq=when+does+fetal+con&aqs=edge.0.0i512j69i57j0i22i30l7.3762j0j1&sourceid=chrome&ie=UTF-8
I argue that ultimately, picking a week is going to be somewhat imperfect, just as choosing a date for alcohol consumption, being draftable by the army, voting, etc., is also imperfect. We shouldn’t let the perfect be the enemy of the good. I’m also arguing that those who think that late-term abortions are somehow “extremely rare” should not be fully comforted by a 1.3% statistic — when you multiply it out, it’s 6,500 deaths per year, potentially of a human life that is viable, able to feel pain, and with some consciousness. Roe has shielded us from these realities, but it’s probably good that we are beginning this conversation now.
Correction to the link — intended this one. Scientific American, “When Does Consciousness Arise in Human Babies?”:
“Consciousness requires a sophisticated network of highly interconnected components, nerve cells. Its physical substrate, the thalamo-cortical complex that provides consciousness with its highly elaborate content, begins to be in place between the 24th and 28th week of gestation. Roughly two months later synchrony of the electroencephalographic (EEG) rhythm across both cortical hemispheres signals the onset of global neuronal integration. Thus, many of the circuit elements necessary for consciousness are in place by the third trimester.”
Ditto Donn Cave’ comment. Steve, Tom’s research clarifies the consciousness/perception disinformation that’s posted on the internet. Consciousness and self-awareness are much more common terms in defining human life.
While you may enjoy arguing the philosophy of viability – that point is not the critical point in abortion decisions.
The statistics from reliable sources like the CDC and NIH, based on actual reporting from physicians and hospitals, indicate the vast majority of late term abortions are to save the woman’s life. You seem to consistently miss this point.
Your comments in these posts about abortion seem to imply that it would be just fine for 6,500 women to die every year (17 a day) from medical complications in late pregnancy. Those medical complications, Steve, are also going to result in fetal death. Why not save the woman’s life? Does she have no value?
In France, with the laws you admire so much, there is a very, very different cultural reality in the role of government plays in a woman’s pregnancy, and the support a pregnant woman can expect.
— France has national health insurance and universal health care; a woman who chooses to have a child will not have medical bills, and her newborn will have high quality, no cost care.
Compare that to the US where almost all health care is a for-profit business, not the art of practicing medicine. If health care is even available where she lives.
— France has inexpensive, high quality municipal daycare and free pre-school for children 3+. In the US, childcare averages $225 week, with little or no government subsidies and no government standards.
— France has 16 weeks of paid leave for women who have a child. In some US states, women take an average of 10 weeks of leave, most often unpaid. Paying is up to the employer. France also has national paternity leave.
That’s just the beginning of the differences.
The next time I read your comments – I’d like to see you delve more deeply into the social, or if you prefer ‘socialist’, government supports for women and families in the comparison countries before you suggest that a US woman, who cannot afford to have a child, is living in the same supportive culture as an EU woman.
In the US having a child is economically devasting for a large percentage of the population. Full term pregnancy is not economically neutral.
Neither is parenting a child to age 18. The average cost, from the USDA, is $272,049.
It’s the money, not the abstract question of viability, or even the more interesting consideration of consciousness, that drives decisions to abort.
cjr, you write: “While you may enjoy arguing the philosophy of viability – that point is not the critical point in abortion decisions.”
Well, that settles it then. 🙂 Viability was in fact a critical point during the Roe era, and many believe — in our own country and many abroad — that viability, like “ability to feel pain”, each have merit as developmental milestones to consider. Consciousness is the last of these milestones, and perhaps it’s the right one to focus in on, but perhaps it’s not?
Like most Americans, I am firmly pro-choice in the early weeks, certainly through 15 weeks, but the morality and ethics get tougher the later it goes. Only 10% of Americans believe there should be no restrictions or double-checks needed until the baby is delivered. In other words, unfettered right to choose until delivery is, when measured across American public sentiment, a pretty extreme position.
Pro-choice maximalists need to contend with just how much a viable fetus (say, at 21+ weeks), which has all the physiology and ability to attain consciousness on its own, differs from one which already has consciousness.
Where — link please — are you seeing the percentage breakdown of reasons for abortions late-term from the CDC or NIH? I’ve looked for such statistics but cannot find them. There’s some general information here, but very important note — it’s not specific to those late in term:
(Last, am quite familiar with France, thanks, having had the pleasure of living there for a year, returning often. I do not think their support infrastructure materially impacts what the late-term limits should be with respect to the rights of the various parties involved.)
Yeah, let’s do some reasoning. This – the article – is about “life”, what we mean by that. Obviously I hope, human life – there are too few vegetarians in our society to imagine that any other kind of life is worth a nickel.
And we’re a secular society, so if there are souls and stuff like that involved, they will have to take care of themselves in their own realm of existence.
Since everything with living cells is alive, meaningful human life is “alive as a human”. This is where I see Mr McCordry’s fascinating article shedding a lot of light. It would be great to have some thoughtful discussions of perspectives like that, and less of the ceaseless reiteration of polling numbers. Like “maybe I read this article and maybe I didn’t, but here’s what 10,000 people who didn’t read this article think.”
As for the reasons for late term abortions … could a little common sense help out here? The prospective mother has been carrying for all this time – 6 months, whatever we’re talking about – and now she and her medical provider have for some reason decided to abort. Note that such circumstances occur very rarely. We can argue about the exact numbers for each complication and type of risk, but … when we cross off all the valid reasons, what’s left that makes this an issue for the state legislature? Why not just step off the grandstands and start work on government interference that makes a difference for the better, like wage theft or real estate speculation?
Thank you, Donn!
You two seem to be arguing against something I’m not claiming.
Like most Americans, I do very much support a woman’s right to choose, unrestricted, up to at least 15 weeks, and likely longer. And, like most Americans (and virtually all other nations in Europe and the Western world) I also think that it’s reasonable to require -some- safeguards and/or physician attestations late in pregnancy, because there is a period when we do start to recognize that a life — a human life — has formed, has even gained consciousness perhaps, and it arguably is owed at least some check or balance before its termination.
Yes, it’s tiny, but I’m interjecting here to help people really calibrate the total; for too long we’ve assumed it’s a tiny number. Well, the number of lives we are talking about is around 6,500 per year in America, terminated in the last trimester of pregnancy. Are these all for medical reasons? Seems possible, but unlikely. Would love some data on this. I’ve searched but have not found it. Have you?
Nowhere in this long back and forth have you cited actual evidence that says what the breakdown of these termination decisions are — I seem to be the main one supplying the links here. But please cite the CDC or NIH breakdown that you referenced above.
I certainly believe that a substantial portion of them are for medical reasons or health of the mother, but I would be very surprised if all 6,500 were. But please link to your source so we can evaluate together. If 300 per year were terminated for essentially optional reasons, is that acceptable to you to preserve the principle? Perhaps. All I’m saying is that it’s easy to brush it off as a handful, or go on a guess (a hope) that it’s solely for medical complications. But as I’ve explored what little data is available, it does not appear to be. (Again, this link below is for all terms, not just late-term. Would love to see a more specific reference for this latter period.)
Attainment of consciousness is one interesting milestone, and is the focus of Tom’s very good piece. Viability is another. Ability to feel pain is another. Heartbeat is another. Delivery is another. These are each important milestones influenced by science, and that understanding is evolving. Good people can and do disagree on which one is the “right” one.
The French framework, which I personally favor, says that there is a period of unfettered right to choose, and then it enters a period where the mother must attain at least attestation of two medical professionals for various conditions — those attestations are not difficult to get, but they at least do provide a second or third opinion on record. That seems flexible, and reasonable to me, and absolutely allows for exceptions for life or health of the mother along with other conditions.
Such a framework also, for what it worth, aligns squarely with the median/moderate American view on abortion, meets with scientific thoughts on viability, etc., but I fully realize and respect the view that it be a different paradigm. I’m comfortable personally with WA’s existing law. But I do think pro-choice maximalists will likely encounter several examples of, say, optional termination of fetus late in pregnancy for spurious/optional reasons (e.g., termination late due to sex of the baby, for instance, or change in the relationship of a parent, etc.), and we need to be able to say that still allowing this is the path of least overall moral/ethical harm. I’m not faulting people for looking at that scenario and saying choice is still the best path, but I’m saying we should at least know in more detail the totals we are talking about, and just how out of mainstream the “unfettered right to terminate up until day of delivery” truly is among Americans and the Western world. There is no other country that has zero safeguards or double-checks, and I don’t think we’d want that in the long-run. But if we democratically do, so be it.
Belated thanks to you Steve, Donn, and cjr for such a strong discussion.