Re-post of an old paper from 10 years ago…
In February of 2002, scientists at Cornell University’s Center for Reproductive Medicine and Infertility claimed their first successes in artificial womb research. This technology has been hailed as a breakthrough that could greatly empower childless individuals and couples, allowing them to bear children without the assistance of a surrogate mother. Unwittingly, it could also spell doom for abortion rights in the United States.
Dr. Hung-Ching Liu and her team were able to create the artificial womb by cultivating endometrial cells on an artificial biodegradable scaffolding. Spurred to multiply with heavy doses of growth hormones and estrogen, the cells took the shape of the scaffolding, modeling themselves into an artificial uterus.
Liu then implanted embryos left over from in-vitro fertilization programs. The embryos attached themselves to the walls of the engineered tissue and began to settle in normally. Although the experiments were halted after six days, Liu hopes to replicate the tests for fourteen days, long enough for the embryos to put down roots and veins, and possibly develop a primitive placenta.
Although Liu’s human experiments are limited to two weeks by IVF legislation, she plans to develop this technology using mice and dogs embryos. If successful, she plans to ask permission to extend her human experiments beyond the fourteen day limit.
Liu is not alone in her quest. While she seeks to grow a baby from scratch, Dr. Yoshinori Kuwabara at Juntendo University in Tokyo wants to assist women who miscarry or have very premature births. His team was successful in removing goat fetuses from the womb and keeping them alive and growing in a tank of amniotic fluid, using artificial umbilical cords to deliver nutrients and deliver waste.
Both scientists are confident that technologies capable of bringing a baby to term outside of the mother will be a reality in a matter of years. In an unforeseen twist, these seemingly empowering technologies will, under current Constitutional law, provide States almost unfettered authority to ban abortion throughout pregnancy.
Prior to Roe v. Wade, there was no recognized Constitutional right to an abortion. In 1973, the Roe court recognized that the Due Process Clause of the 14th amendment to the Constitution gave women certain privacy rights with regard to abortions. As delineated in Roe and affirmed in the 1992 Casey decision, prior to fetal viability, a woman has a right to obtain an abortion without undue interference from the state. After viability, the State’s interest in the life of the unborn child permits restrictions or prohibitions on abortion so long as the law contains an ‘escape clause’ where the life or health of the mother is in jeopardy. Currently 40 states restrict or prohibit post-viability abortions.
The Roe Court further defined legal viability as the time where the fetus is “potentially able to live outside the mother’s womb, albeit with artificial aid.” Therein lies the looming conflict. Thanks to rapid advances in the survivability of preemies, viability has crept from 28 weeks at the time of the Roe decision to approximately 20 weeks today. Artificial womb technology, if successful, will catapult viability all the way back to the date of conception and will allow states to restrict or prohibit abortions throughout pregnancy.
There are two possible scenarios for the technology. The first, called the extraction scenario, is the most damaging to a woman’s right to an abortion. In this situation, researchers perfect methods to successfully extract a fetus from the mother, implant it in an artificial womb and raise it to term. Under this scenario, the date of viability outside the womb would be the date of conception. Following a strict reading of Roe, States would gain an unfettered ability to restrict or prohibit abortion from the moment of the first cell division.
More ambiguous is the implantation scenario. Here, physicians are not able to extract a fetus from the womb and transplant it, but are able to successfully grow an embryo into a baby when it is initially implanted in an artificial womb. Thus, the date of viability for an implanted fetus is conception, but the date of viability for a conventional child is still limited by medical science’s ability to care for a premature birth.
How the Supreme Court would decide on the implantation scenario is totally unpredictable and could depend on the political leanings of the Court at the time a decision is handed down. Some scholars argue that the Court would split abortion law into two categories, one for implanted fetuses, which would be protected completely, and one for normal pregnancies, which would be subject to unchanged Roe style pre- and post-viability determinations.
Others believe that the Court, especially a conservatively minded one, would interpret successful implantation as evidence that viability exists at conception. In such a situation, traditional mothers would have no right to an abortion, even though their fetus could not be transplanted to an artificial womb.
Still another more radical view envisions the Supreme Court developing an entirely new treatment for abortion law not predicated on Roe v. Wade. An activist court might follow the suggestion of the plurality in Casey and determine that the right to an abortion is so fundamental to economic and social developments that it must be preserved. But this would require a remarkable deviation from the Constitutional framework of viability that the Court has already committed itself to.
One can only marvel at the ironies that would reveal themselves if (when!) artificial womb technologies become reality. Anti-abortion conservatives, long vilifying Roe and pressing for its abandonment, would suddenly find merit in its viability framework, as it would give states almost unfettered ability to restrict or prohibit abortion. Pro-choice liberals, long claiming abortion rights victory based on the Roe decisions, would find the structure of their very savior encasing them in a constitutional cage of their own making.
The ironies extend beyond constitutional arenas and into social and political spheres. Abortion foes who have fought embryonic research as murder are faced with the prospect that the scientific research they oppose could be their savior. The embryos sacrificed today to perfect this technology may in fact save many times their number later on as artificial wombs enable states to prohibit abortions. And feminists, who might see artificial wombs as a boon to women too busy with their careers to worry about nine months of inconvenient pregnancy, may find that the same liberating technology results in a significant curtailment of their Constitutional right to abortion.
Unintended consequences are the inevitable children of all technological advances. As science delivers this precocious technology to term, the Supreme Court, and the country at large, may find itself wishing it had never met the screaming brat known as the artificial womb.
