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The question of fetal viability and how it's changing the abortion debate

FILE - A woman holds a poster that reads "Abortion is Healthcare" as abortion rights advocates and anti-abortion protesters demonstrate in front of the U.S. Supreme Court, Dec. 1, 2021, in Washington, as the court hears arguments in a case from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy, well before viability. As the Supreme Court court weighs the future of the landmark 1973 Roe v. Wade decision, a resurgent anti-abortion movement is looking to press its advantage in state-by-state battles while abortion-rights supporters prepare to play defense. (AP Photo/Andrew Harnik, File)
FILE - A woman holds a poster that reads "Abortion is Healthcare" as abortion rights advocates and anti-abortion protesters demonstrate in front of the U.S. Supreme Court, Dec. 1, 2021, in Washington, as the court hears arguments in a case from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy, well before viability. As the Supreme Court court weighs the future of the landmark 1973 Roe v. Wade decision, a resurgent anti-abortion movement is looking to press its advantage in state-by-state battles while abortion-rights supporters prepare to play defense. (AP Photo/Andrew Harnik, File)

When Roe v. Wade was decided in 1973, viability was considered to be 28 weeks. Now, it’s about 22 weeks.

“In 1973, my first year of residency, we didn’t put breathing tubes into 28-week babies to try to save them because it was futile,” Dr. Edward Bell says. “And now we don’t do it because it’s not necessary. The same babies.”

The question of viability is at the heart of a Mississippi case that could overturn Roe v. Wade.

Today, On Point: How is medical technology changing the viability threshold, and the abortion debate?

Guests

Carol Sanger, professor of law at Columbia Law School. Author of “About Abortion: Terminating Pregnancy in 21st Century America.” (@carolsangernyc)

Dr. Edward Bell, professor of pediatrics at the University of Iowa.

Also Featured

Michelle Butler, mom to Curtis and C’Asya.

Dr. Brian Sims, neonatologist professor of pediatrics at the University of Alabama at Birmingham.

Transcript: Highlights from the show’s opening segment

MEGHNA CHAKRABARTI: Michelle Butler knew that something wasn’t right. She could feel it. Butler was pregnant with twins. She’d already suffered from a ruptured amniotic sac and had just left the hospital after receiving a surgical suture in her cervix to help stop pre-term labor.

MICHELLE BUTLER: So I wasn’t prepared to have my babies at that point in time. I was thinking I was going to actually carry them all the way out.

CHAKRABARTI: A full-term pregnancy lasts about 40 weeks. Butler was barely past the halfway mark, just 21 weeks and one day. On July 5th, 2020, just five months pregnant, instead of heading home to Greene County, Alabama, Butler’s sister drove her back to the hospital. That afternoon, her twins, Curtis and C’Asya, were born severely premature. They had a less than 1% chance of survival. In reality, that number was closer to zero. Michelle knew that, so before her twins were born, she had only one request.

BUTLER: I had asked them can I talk to the doctor that was in charge of the NICU.

DR. BRIAN SIMS: The day of the delivery, the obstetrical team gave me a call as the neonatologist on call, and they told me that there was a mom with 21 week twins and could I come and have a consultation and discuss.

CHAKRABARTI: Dr. Brian Sims is a neonatologist, attending physician and professor of pediatrics at the University of Alabama, Birmingham. He walked into Michelle Butler’s room.

SIMS: And we had a very candid discussion about how up to this point, we’ve not had success with keeping babies alive at this point. But we actually recommend not taking on resuscitative efforts at this age, if the babies really act like they’re 21 weeks. And if their assessment says they’re 21 weeks.

CHAKRABARTI: So Michelle asked a question.

BUTLER: Can you please try to save my twins for me?

CHAKRABARTI: The second Curtis and C’Asya were born, almost five months early, Dr. Sims and his team immediately got to work.

SIMS: One of the limitations of viability for extremely premature babies is that their lungs are not developed enough to take in oxygen, even if they’re given oxygen.

CHAKRABARTI: With the odds stacked against her, C’Asya struggled. Curtis, however, was different.

SIMS: We didn’t expect him to be as as vigorous as he was.

BUTLER: After giving birth, I had to wait for about two hours just to go down to the NICU to see them. Because they were still trying to make sure they were stable enough.

CHAKRABARTI: The twins were tiny. Curtis weighed barely 14 ounces. That’s less than one pound. His entire body could fit in his mother’s cupped hands. C’Asya was even smaller.

BUTLER: My little girl, her heart, her heart kept stopping.

SIMS: For most babies at this age is to allow the parents to hold their babies, love their babies while they can. The heart rate will slow down to the point that they pass away.

CHAKRABARTI: It was early on July 6th. Her babies were less than a day old. The sun hadn’t yet risen. And in the pre-dawn dark, Michelle prayed and made her decision.

BUTLER: 3:45 in the morning when … the Lord had came to me and told me if you let me get her, I’ll let you keep Curtis.

CHAKRABARTI: C’Asya died later that day. Almost every single baby born that early does. But her brother, Curtis survived. Born at just 21 weeks and one day, Curtis is one year old now and holds the record for the earliest born preemie to survive. His survival, while extraordinarily rare, shows what advances in medical science have made possible. It also shows how the question of viability continues to complicate the debate over abortion rights.

CHAKRABARTI: When the Supreme Court first ruled on Roe v. Wade in 1973, the majority also held that states could limit access to abortions after the second trimester, or roughly 28 weeks. In the 1992 Planned Parenthood v. Casey case, the court opted for a different framework, one based on fetal viability. Well, now the court is considering a Mississippi case in which the justices are focusing on a single question: Is fetal viability a legitimate criteria for how far states can go to restrict abortion access?

CHAKRABARTI: That question matters more than ever because in the 50 years since Roe was first decided, what’s considered the limit of fetal viability has dropped dramatically, down from 28 weeks gestation to 24 or 23 weeks now, even 22 weeks at some hospitals that can care for such extremely premature infants.

CHAKRABARTI: Curtis’s survival at 21 weeks and one day raises the question of just how much further down that viability threshold could go. Dr. Brian Sims says Curtis’s case is extraordinary, as are the links neonatal teams have to go to tend to extremely preterm babies. Everything about them is delicate, from their lungs to their skin, which is as fragile as a butterfly’s wing.

SIMS: He had thin scan, which is a common trait for premature babies, extremely premature babies, where you could see their veins through their skin. It’s almost like a saran wrap, almost shiny.

CHAKRABARTI: Curtis was on oxygen. He was intubated and in an incubator. He was treated with surfactant to help open up his lungs. Doctors put an umbilical line in to feed him and help stabilize his metabolism. But to everyone’s surprise, he got stronger every day.

SIMS: Curtis’s assessment was different than any other baby that I’ve seen for sure, and also my division. His assessment was was much more positive than other babies. He continued to be stronger and stronger until he was about three months old when he was removed from a ventilator.

CHAKRABARTI: Mom Michelle Butler worked at a catfish processing plant. Month after month, she drove 90 minutes from Greene County to Birmingham to visit Curtis and pump breast milk for him to take along with the IV formula. She also held him as much as she could, sometimes four or five hours a day.

BUTLER: I didn’t want to be scared because I didn’t want him to feel my fear. … I would listen to church music with him. I would sing to him. I’d pray over him. So I just let him know that I was very much comfortable with everything that he was going through at the time, while he was in the NICU.

CHAKRABARTI: Curtis gained weight. In nine months, he went from weighing less than a pound to a healthy 11 pounds, two ounces. 275 days after he was born, Curtis went home.

BUTLER: The night shift nurses, they were all taking pictures and crying. They were so happy that he was going home. I had doctors coming in, taking pictures. Everybody was rooting for him.

CHAKRABARTI: Dr. Brian Sims says 20 or 30 years ago, Curtis would have certainly died. In fact, recall that his twin sister, C’Asya did. But there have been monumental changes in neonatology since then, most notably the approval of synthetic surfactants in the 1990s. There have been improvements too in ventilator technology, heat management, infection control and neurology.

SIMS: So these are things that over time the science has improved and we learn the better way to care for these babies. And so that definitely helped reduce the mortality in babies at this particular age. So that lead to babies just doing much better.

CHAKRABARTI: And how much better?

SIMS: At 22 weeks, we’ve had survival up to around 20% that survived discharge.

CHAKRABARTI: Sims says the survival rate at the University of Alabama increases to 50% for babies born at 23 weeks and 75% for babies born at 25 weeks. Rates unimaginable when Roe was first decided in 1973.

CHAKRABARTI: Curtis is at home now, but he has a long way to go. He still needs supplemental oxygen and has a feeding tube. He’s also got an entire medical team: pediatrician, pulmonary specialists, surgeons, occupational and physical therapists. Mom Michelle also doesn’t yet know if Curtis will have cerebral palsy or other neurological challenges extremely common in very premature babies. But still, Dr. Brian Sims says Curtis’s trajectory is great even as each day of Curtis’s life takes him and his mother into completely uncharted territory.

SIMS: As I’ve said many times … it’s a big deal for a reason.

CHAKRABARTI: That reason being, while Curtis is the first baby to survive, being born at just 21 weeks and one day, he is very likely not the last.

This article was originally published on WBUR.org.

Copyright 2021 NPR. To see more, visit https://www.npr.org.