The falling age of viability for premature babies is changing the pro-life/pro-abortion narrative and may affect abortion laws in the near future.

Preterm babies are surviving with adequate care at much younger gestational ages than before, thrilling pro-life advocates and making pro-abortion advocates very nervous. The subject at issue is the viability of the baby and how that affects federal and state laws going forward. For example, some question: “How can we abort babies at the same age of preterm babies being saved in the next room?”

What is the Age of Viability?

The Roe v. Wade decision and subsequent court decisions haven’t determined the exact age of viability in a preborn child. The decision has been left up to the states in many cases, and even then those laws are overturned based on earlier Supreme Court decisions — in essence saying, “We don’t know the age of viability but we know that isn’t it.”

The vague laws on the books have both pro-life and pro-choice supporters fighting over a few gestational weeks — those between 20 and 26 weeks after conception.

“I guess we would say that these babies deserve a chance.” Dr. Edward Bell

Of course, pro-life proponents believe that life begins at conception — and any attempt to destroy that life once conceived is immoral and, for Christians, unbiblical. The issue for pro-lifers regarding lowered viability ages is an opportunity to show the humanness of the preborn child and the value of life and survivability at a younger age than pro-abortion supporters have consistently claimed.

For pro-abortion supporters, if viability is established at 20 weeks rather than the generally assumed 24–26 weeks, abortion could be deemed illegal for those weeks.

State Laws

Some states have laws making abortion illegal, with few exceptions, after 20 weeks; others sooner. If challenged, they would likely be struck down, reported Pew Research Center in a 2013 article, simply because the Supreme Court has not ruled that 20 gestational weeks is the age of viability for a preborn child.

Study: Treatment Works

Questions surrounding viability have arisen as more and more premature babies are surviving, with adequate care.

In a 2015 study published in The New England Journal of Medicine, researchers found that premature infants born before 27 weeks had a greater chance of survival with active treatment (defined by the study as any potentially lifesaving intervention administered after birth) than those who did not receive active treatment — and a key determining factor of treatment was the hospital and its policies on whether to treat very early premature infants.

Of the 24 hospitals examined, five were consistently active at treating babies born at 22 weeks, while four never actively treated babies born that early. Sixty-five percent of infants receiving active treatment survived; all of those not receiving active treatment died. On record, no infant born prior to 21 weeks has survived.

Sometimes it is the choice of hospital a woman makes in an emergency that determines whether her child receives active treatment or only comfort care. In other cases, it comes down to the doctor’s preference and his personal opinion on viability. One author of the study, Matthew A. Rysavy, told The Washington Times that “a doctor might say ‘no 22-week infant has ever survived,'” but that could be because the doctors at that hospital don’t consider 22-week babies viable, even though some 21-week babies have survived.

Preemies and Impairments

To be clear, the earliest preemies to survive are at the greatest risk for having severe impairments, according to the study.

The rate of survival without severe impairment for infants born at 22 weeks’ gestation was only 3.4 percent. For babies born at 26 weeks, the rate of survival without severe impairment was 75.6 percent. By the time a baby reaches the 26th week, he or she has an 81.4 percent chance of survival — but for those who do, it could still mean months of intensive care at the hospital.

While the pro-abortion argument underscores the health impairments, disabilities as a whole do not influence pro-life advocates who value life from conception.

Abortion Laws Going Forward

As preterm infants survive at younger ages, with the youngest thus far at 21 weeks gestation, there is an obvious overlap where some are being treated and others (at the same or even older ages) aborted. This creates a problem for pro-abortion advocates, who wish to keep the age of viability older in order to legally perform abortions at a later stage of fetal development.

Pro-life supporters view the evolving viability of preborn babies as a way to possibly push abortion laws back down and save more lives. As younger and younger preterm babies survive with adequate treatment, it will become more difficult for lawmakers to conclude that the age of viability should remain the same. Since a judge, in many cases, determines what is or is not a reasonable age of viability, it remains to be seen how the survival of younger preterm babies will affect legislation going forward.

Dr. Edward Bell, a leader of the 2015 study and a pediatrics professor at the University of Iowa, said he considers 22 weeks a new marker of viability, reported the New York Times. “That’s what we think, but this is a pretty controversial area,” he said. “I guess we would say that these babies deserve a chance.”