SALT LAKE CITY — The tiny, translucent infants swathed in plastic wrap in neonatal intensive care units across the nation are oblivious to Roe v. Wade and Alabama’s controversial new law that makes most abortions illegal.
But they, and other extremely premature babies, have indirectly played a role in the groundswell of momentum that some people believe could result in the U.S. Supreme Court overturning the decision that made abortion legal in 1973.
That's because these "micropreemies" are tugging at the boundaries of viability, the amorphous stage at which a fetus can survive outside the womb, and a key component of abortion laws.
In the 43 years since Roe v. Wade, medical advances have dramatically changed the outcomes for infants born late in the second trimester of pregnancy. Then, virtually all babies born delivered between 22 and 27 weeks gestation died. Now, many are given treatment that allows many of them to have normal lives.
One example is Quinn Sellers, a third-grader in Taylorsville, Utah, who was born "extremely small and extremely sick" at 25 weeks' gestation and given a 50-50 chance of survival, according to her mother, Jessica Sellers.
Quinn just turned 9 and is a healthy child who has thrived thanks to the medical advances of the past few decades, plus a blessing of geography.
Not all outcomes are as happy.
Forty percent of infant deaths are within the parameters of what the American College of Obstetricians and Gynecologists calls the “periviable” stage — from roughly 20 weeks to nearly 26 weeks gestation. And some micropreemies who do survive have lasting neurological and physical challenges.
However, aggressive treatment of both the child and a pregnant woman in danger of preterm delivery, especially in states such as Utah that make it a priority, is allowing more of these infants to survive, and at earlier ages.
In the U.S., the smallest baby to have survived is believed to be Lyla Stensrud, born in San Antonio at 21 weeks in 2014, weighing about 14 ounces.
A boy born last year in Tokyo is said to be the smallest infant to ever be released from the hospital; the infant weighed 258 grams, or about 9 ounces, when he was born at 24 weeks.
The survival of these children, coupled with publicity surrounding their homecomings, is encouraging more parents facing premature delivery to choose aggressive treatment for the infant, despite its costs and challenges. At the same time, their survival is emboldening abortion opponents, since abortion laws in the U.S. have historically hung on viability.
“When you see friends, or even a story on the news, of someone who has survived at 25 weeks, or 22 weeks, then it’s not a far cry to say, 'Oh, man, I know someone who has been aborted at a later gestational age than that,'" said Dr. Donna Harrison, executive director of the American Association of Pro-Life Obstetricians and Gynecologists. "It really does change your mind, the reality that these little babies are human beings."
Abortion-rights supporters, however, note that only 1.3 percent of abortions are performed at 21 weeks gestation or later, and say that infants aren't really viable earlier now than they used to be; it's just that physicians are more often able to keep them alive until they are.
“We’re not talking about moving viability; we’re talking about medical miracles,” said Karrie Galloway, president and CEO of Planned Parenthood of Utah.
The concept of viability, however, may soon become even more elastic. Researchers in Philadelphia announced in 2017 that they’d been able to keep lamb fetuses alive in an artificial womb they call a “BioBag,” suggesting that synthetic wombs could one day allow extremely premature human babies to gestate to term.
That technology is years away, however, and comes loaded with ethical questions. Here’s how micropreemies like Quinn Sellers are surviving right now, and how they are changing what's known as the "gray zone" of fetal viability.
“Forty years ago, we were happy if we had a baby who was born at, say, 28 weeks, which would weigh roughly about 3 pounds,” said Dr. Bradley A. Yoder, a neonatologist with the University of Utah School of Medicine and Primary Children's Hospital in Salt Lake City.
Then, the chance of an infant surviving at 28 or 29 weeks gestation was about 50-50; now, more than 95 percent of those preemies survive.
“It’s very rare that (babies born at 28 or 29 weeks) die unless they have a significant anomaly,” said Yoder, who is also a principal investigator with the Neonatal Research Network of the Eunice Kennedy Shriver National Institute of Child Health and Human Development.
Survival rates at 23 and 24 weeks have increased as well. Between 50 percent and 60 percent of babies born at 23 weeks survive, and at 24 weeks, more than 90 percent survive, Yoder said.
That’s because treatments for both the babies and their mothers have improved, and neonatologists and obstetricians frequently work together to develop a cooperative care plan.
One of the most effective interventions is giving steroids to mothers at risk of preterm delivery because of conditions that include diabetes, high blood pressure and preeclampsia. Such treatments have risen dramatically in the past two decades. At the University of Utah and Intermountain Health Care, about 90% of women at risk of preterm delivery take steroids, compared to about 50% two decades ago, Yoder said.
Antenatal steroids, given by injection, help premature babies survive because they accelerate development of the baby's lungs, which are not fully developed until the ninth month of pregnancy. Research has also shown that steroids reduce bleeding in the brain and an inflammation of the bowel called necrotizing enterocoliti.
The incidence of necrotizing enterocoliti has also been reduced with improved nutrition.
Extremely premature babies can't nurse, but doctors are able to feed them donated breast milk, such as that collected by a new milk bank in Utah, along with probiotics, administered through a tube that goes through the baby's nose or mouth into the stomach, Yoder said.
Another threat to micropreemies is respiratory distress syndrome, but a new treatment, called surfactant therapy, was introduced in 1990 and has reduced such deaths by half, said Dr. Aimee Nussbaum, the March of Dimes' director of maternal-child health in Utah and Nevada.
The University of Iowa Stead Family Children's Hospital is keeping up with the tiniest babies worldwide with a database that includes place of birth, gestational age and birth weight.
How hospitals differ
Jessica Sellers had a normal pregnancy until 22 weeks, when her blood pressure suddenly spiked, and her doctor sent her to Intermountain Medical Center, where it was discovered that Quinn didn’t seem to be growing.
Over the next three weeks, tests showed that the blood flow to the umbilical cord was compromised, and with preterm delivery increasingly likely, Sellers was given steroids at 24 weeks gestation to hasten Quinn's lung development. She was delivered by C-section the following week.
Sellers said that none of her doctors or members of her family pressured her to authorize extraordinary measures to keep Quinn alive, nor did they urge her to forego the challenges and expense of caring for Quinn by opting instead for “comfort care,” which amounts to letting the child die naturally.
Lucky for Sellers — and for Quinn — they live in an area where hospitals, including Intermountain Medical Center, use all means possible to help an extremely premature baby survive, if that is the wish of the parents. Not all expectant parents and micropreemies have that advantage.
In a study published in 2015 in the New England Journal of Medicine, researchers examined the outcomes of nearly 5,000 extremely premature infants born at 24 hospitals across the U.S. between 2006 and 2011.
They found widely disparate rates of survival, which they attributed to different hospital policies regarding resuscitation and treatment. Only five of the hospitals in the survey provided "active treatment" to all infants born between 22 and 26 weeks gestation. And all extremely premature babies who were not given treatment to sustain life died within 24 hours, the researchers found.
Of those given treatment, 65 percent survived, and 56 percent had no neurological problems later in life. But the rates of survival declined alongside the gestational age of the fetus. All babies born before 22 weeks of gestation died within 12 hours.
Quinn Sellers was among 209 infants born in Utah in 2010 at 27 weeks gestation or younger, according to Nicole Stone, program epidemiologist with the Maternal and Infant Health Program at the Utah Department of Health.
Of these infants, 78 were 22 to 24 weeks gestation; 131 were 25 to 27 weeks.
In 2017, the last year for which data was available, 85 infants were born at 22 to 24 weeks gestation; 141 at 25 to 27 weeks.
While these figures do not reflect how many of those babies may have died after birth, they follow a nationwide trend of the number of premature births (prior to 37 weeks) increasing overall. The National Center for Health Statistics reported this week that the preterm birth rate in the U.S. had increased for the fourth consecutive year.
Having a baby at 25 weeks is markedly different from having one at 39 or 40 weeks, and not all parents opt for active treatment, even if doctors are willing to provide it, Yoder said.
"There are some families that are unwilling to deal with a baby who is born at 23 or 24 weeks," he said. "We still allow them to make that decision. But in my experience, that is the very rare exception. Most parents want us to do everything we can."
Quinn was in the hospital for 20 weeks, and had to be fed through a tube and given oxygen even after she came home. Both Sellers and her husband worked full time, and Quinn's grandmothers took turns caring for her during the day. In ways large and small, Quinn's parents' lives were radically different from the parenthood they'd imagined when they first found out Jessica Sellers was pregnant. They didn't take Quinn anywhere for a year and joked that they were under house arrest.
Despite the difficult first years, they have no regrets, and Quinn has no known health issues stemming from her early arrival. "If you went to her third-grade class, you probably couldn’t pick her out from anyone else, academically, socially, physically," Sellers said.
New 'moral terrain'
Despite the importance of viability, there is no definitive legal or medical definition of when it occurs, and it is a doctor, not a judge, who determines when a fetus is viable on a case-by-case basis. Yet viability has been a component of abortion law ever since the Roe v. Wade ruling in 1973.
"The current U.S. Supreme Court standard holds that states may prohibit abortion after fetal viability so long as there are exceptions for the life and health (both physical and mental) of the woman," the Guttmacher Institute, which tracks abortion legislation, says on its website.
Even states with more liberal abortion laws, like the Reproductive Health Act passed in January in New York, cite viability as a standard for when abortion is allowed. New York's law allows abortion after 24 weeks if a doctor determines the fetus cannot survive outside the mother's womb, with or without medical support.
But seven states, including Utah, have passed laws this year that make most abortions illegal before the faintest hope of viability. If the laws withstand court challenges, abortion would be illegal after 18 weeks in Utah and Arkansas, and after six weeks in Georgia, Kentucky, Mississippi and Ohio.
And in Alabama, Gov. Kay Ivey signed into law on Wednesday legislation that bans virtually all abortions, with exceptions that include fetal anomalies that would result in stillbirth or death after delivery.
As such, not only is viability changing as a benchmark, but the pro-life movement is working to dismiss it as a standard completely. "Science has left Roe behind," March for Life president Jeanne Mancini wrote in an op-ed for USA Today earlier this year.
However, the newest restrictions on abortion — among more than 300 proposals introduced in states this year, Guttmacher says — are also part of an effort to force the Supreme Court to reconsider Roe v. Wade, analysts say. The addition of Justice Brett Kavanaugh to the court has given abortion opponents hope that the landmark ruling could be overturned.
Galloway, at Planned Parenthood of Utah, said that in using the survival of micropreemies to craft arguments against abortion, abortion opponents confuse health care and politics.
“When we’re talking about abortion, we’re talking about a whole other issue, and when people conflate things and say ‘That’s why we’ve got to have a heartbeat bill,’ we aren’t talking about anything that is even in the same stratosphere,” she said. “I’m sorry, but this is just foolishness.”
The issues will become even more complex if researchers in Philadelphia who developed the artificial womb for lambs are able to adapt their fluid-filled BioBag for human fetuses, something that Yoder, the neonatologist in Utah, said could happen within the next two decades.
Such technology could "change the moral terrain" and result in laws that require a woman who wants to terminate a pregnancy to transfer the fetus to an artificial womb between 18 weeks and viability, wrote Harvard Law School professor and bioethicist I. Glenn Cohen in response to news about the Philadelphia research.
Another possibility is that some states might seek to ban both the transfer of the fetus to an artificial womb and abortion at 18 weeks, Cohen said, adding that issue would become more complex both legally and ethically because the technology changes the substance of the right at stake. Currently, abortion is defended as "a right not to be a gestational parent," not a right "not to be a legal or genetic parent," he said.
Medical advances are creating a strange intersection populated by two disparate groups of people: women seeking an abortion at 22 weeks, and parents desperately trying to keep a micropreemie the same age alive.32 comments on this story
But for the latter, the study in the New England Journal of Medicine made clear that the choice of hospital matters for parents at risk of preterm delivery, and if parents are willing to take on the challenges of bringing a micropreemie home, they should investigate a hospital's policy or record of treatment of the tiniest babies, said Harrison, an OB-GYN in Michigan.
"I think pretty much every hospital would offer resuscitation to a 26-weeker, but when you get below 26 weeks, then you're going to be in a dicier situation." And, despite all the progress in medicine, nothing has changed the basic timeline of how a fetus develops in utero.
"If no one resuscitated 22-week-old babies, none would live," Harrison said.