Introduction

Line drawing is central to regulation in many areas, including the reproductive context. International guidelines have, for example, drawn a 14-day line after which embryo research is prohibited. And when Roe v. Wade was decided, the Supreme Court ruled that states could not ban abortions before viability – when the fetus can survive outside the womb. The selection of the 14-day and viability lines was rooted in part on scientific principles.[1] But deciding which scientific realities and technological capacities were relevant also depended on ethical, legal, and policy considerations. Complicating the process were the wildly divergent views among the public regarding the moral status of embryos and fetuses.

We are currently facing an unusual moment when pressures are mounting to reconsider these long-established regulatory lines. On the one hand, the Court granted certiorari in Dobbs v. Jackson Women’s Health Organization,[2] a case that considers the constitutionality of Mississippi’s ban on abortions at 15 weeks, well before viability.[3] In so doing, the Supreme Court signaled its willingness to reconsider the viability line. Conservative states have long been urging erosion of this line with their growing number of pre-viability abortion bans. Until now, the Court has repeatedly refused to review lower courts’ injunctions of such bans,[4] presumably because it respected the long precedent regarding the viability line. Its decision to consider the constitutionality of Mississippi’s pre-viability ban suggests a change of heart on the part of several Justices.[5]

Meanwhile, scientific developments making it possible to grow embryos beyond 14 days have prompted reconsideration of the 14-day limit on embryo research. In precisely the same month (May of 2021) that the Supreme Court decided to hear Dobbs, the international governing body for stem cell research, the International Society for Stem Cell Research (ISSCR), argued for extending the 14-day rule on a case-by-case basis.[6]

This article explores how the concurrent willingness to rethink long-held lines in these two contexts—embryo research and abortion—are in direct opposition to one another and what that might mean for society and trust in the respective decision-makers. It first begins by describing the conflicting views the line drawers confronted in establishing the 14-day rule and the viability line. Second, it examines the pressures that have led toward the possible erosion of these lines and how science, ethics, and social norms have shaped this movement. Third, it explores what it means to see a shift in these two lines, particularly given that the arguments for their erosion are potentially limitless. In addition, it points out how these line erosions threaten to undermine the efforts at compromise and consensus that led to the establishment of the initial lines. When one also considers the deep contradictions in the directions of these two erosions, we see movements that can only further polarize our society and contribute to the growing distrust of decision makers. The article concludes with some thoughts about guidelines for line-drawing and when long-established lines should be shifted.

I. Drawing Lines –the 14-Day and Viability Rules

A. The 14-Day Rule

1. Origins of the Rule

In 1979, the 14-day rule was proposed by the Ethics Advisory Board of the US Department of Health, Education, and Welfare (now known as DHHS)[7] in response to the fact that in vitro fertilization (IVF) allowed for the birth of the first “test-tube baby.” The initial excitement about this new technology gave way to concerns about the creation of human embryos in laboratories.[8] In response to these worries, the United Kingdom established the Warnock committee, an international group of ethicists and scientists chaired by Mary Warnock.[9] Its charge was to address the question of how to regulate embryo research in light of the various moral, legal, and social considerations.[10] In 1984, the committee issued the first comprehensive recommendations for the regulation of embryo research,[11] which included the adoption of the 14-day rule.[12] In essence, the rule bars the growth of human embryos ex vivo 14 days post-fertilization.[13]

In reaching this determination, the Warnock Committee explored the great division in views and theories as to the moral status of the embryo.[14] While some have argued that human life begins at conception, that is not, in fact, a precise moment in time. Fertilization is the beginning of the process, but the full merging of genomes, or syngamy, does not occur until the two-cell stage of the embryo, 30 hours after the sperm penetrates the egg.[15] From the start of fertilization until the primitive streak begins to form, the cells of the embryo are not differentiated.[16] In other words, they have not been targeted to become a particular type of tissue or organ. In these early stages, the embryo is a blastocyst, with inner mass cells or blastomeres that are totipotent, meaning that each has the capacity to develop into a separate individual.[17]

At 15 days, the primitive streak begins to form.[18] This transient, elongated band of cells that develops along the axis of an early embryo is considered a precursor of what will become the nervous system.[19] It marks the beginning of the transformation of the embryo from a blastula, a one-dimensional layer of epithelial cells, into the gastrula, a multilayered and multidimensional structure,[20] which lays the foundation for the development of organs like the central nervous system and heart and even the initiation of egg and sperm development.[21] The key feature of this stage is that “it represents the earliest point at which an embryo’s biological individuation is assured.”[22] Until this point, twinning is possible because the cells are totipotent.[23] In other words, before the primitive streak forms, the embryo can divide and form two separate, genetically identical embryos that have the potential to develop into multiple humans.[24] As Mary Warnock described it, “before fourteen days the embryo hasn’t decided how many people it is going to be.”[25]

The 14-day rule was intended to provide a “middle-ground” position to govern embryo research[26] and therefore reflects a compromise of sorts between opposing views regarding the moral status of the embryo.[27] It does not treat fertilization or the creation of an entity with the whole genome as the moment of moral significance, nor does it treat the embryo as mere tissue. Instead, it accords the embryo special status when it becomes a “unique human organism.”[28] Many criticized the rule as grounded in an “arbitrary, biological milestone”[29] because many others might have been used. Other significant moments in embryo development include the point of fertilization (day 1), the beginning of implantation (day 5), the end of implantation (day 11), the formation of organs like the heart, the beginning of the heartbeat, the beginning of brain activity, “rudimentary sentience or awareness of surroundings and pain, and sense of self.”[30] As one group notes,

the 14-day rule was never intended to be a bright line denoting the onset of moral status in human embryos. Rather, it is a public-policy tool designed to carve out a space for scientific inquiry and simultaneously show respect for the diverse views on human-embryo research.[31]

Another commentator described it as “a political decision to show the public there is a framework for this research, that we aren’t growing babies in labs.”[32]

Ten years after the Warnock committee adopted the rule in 1984,[33] the United States National Institutes of Health’s Human Embryo Research Panel, which provided recommendations regarding the federal funding of embryo research, followed suit.[34] By the time the International Society for Stem Cell Research (ISSCR) issued its first set of guidelines for research on human embryonic stem cells, the 14-day rule was “firmly established in the research community” internationally.[35] In at least 12 countries,[36] including the United Kingdom, China, Japan, Australia, South Korea, and China, it has become law.[37] While many countries like the United States have no legislation regarding the 14-day rule,[38] it nevertheless functions as a standard that guides scientists and regulators.[39] Thus, even where it is not law, for more than 30 years, scientists have voluntarily complied with this limitation.[40]

Until recently, the line was more symbolic and expressive than truly prohibitive because embryos simply could not grow more than a few days when created in vitro.[41] However, in 2014 and 2015, scientists reported the capacity to take cells from embryo-derived stem-cell lines and grow them in conditions that allow them to self-organize into the three types of cellular structures that develop in embryos soon after they implant.[42] Then in 2016, two different groups of scientists demonstrated the ability to grow human embryos in vitro for 12 to 13 days.[43] To comply with the 14-day rule, however, they did not allow the experiments to continue beyond that point.[44] And in 2019, a group demonstrated the capacity to grow monkey embryos for 19 days.[45] As some noted, these developments “put human developmental biology on a collision course with the ‘14-day rule.’”[46]

2. The Erosion of the 14-Day Rule

These advancements in developmental biology led to reconsideration of the 14-day rule.[47] This May, the ISSCR recommended extending the limit beyond 14 days because it may soon be possible to culture human embryos beyond 14 days, and because embryo research could “yield beneficial knowledge that promotes human health and well-being.”[48] As the report indicated:

It is currently not technically feasible to culture human embryos beyond formation of a primitive streak or 14 days post-fertilization. However, culture systems are evolving, making this a possibility in the near future. Understanding the primitive streak, early germ layer development and primordial germ cell formation in humans is crucial to improve our understanding of and interventions for infertility, in vitro fertilization, pregnancy loss, and developmental disorders that occur or originate soon after implantation. Research using embryos is also crucial to validate integrated stem cell-based embryo models, which in the future may provide a more practical alternative to understanding some aspects of early human development.[49]

While the ISSCR did not state that the rule should be abolished in all cases, it called for “public conversations touching on the scientific significance as well as the societal and ethical issues raised by allowing such research” led by “national academies of science, academic societies, funders, and regulators.”[50] The new guidelines suggest that if those conversations lead to

broad public support . . . within a jurisdiction, and if local policies and regulations permit, a specialized scientific and ethical oversight process could weigh whether the scientific objectives necessitate and justify the time in culture beyond 14 days, ensuring that only a minimal number of embryos are used to achieve the research objectives.[51]

The rationale for such an extension was essentially utilitarian with its focus on the societal benefit that extended embryo research might provide.[52] Many have noted the particular value of studying embryos between days 14 and 28 when cell differentiation leads to the development of the embryo’s heart, central nervous system, and other organs, as well as progenitor cells for the egg and sperm. The placenta also begins to form at this point.[53] In addition, it is during these early weeks of embryo development when things are most likely to go awry, causing abnormalities or spontaneous miscarriages,[54] which unfortunately are not so infrequent.[55]

Moreover, little is known about embryo development between 14 and 28 days, largely because most pregnant people do not realize they are pregnant that early.[56] As a result, very little tissue from spontaneously aborted embryos at less than 28 days of development is available for research.[57] Studying embryos grown beyond 14-days might therefore help us better understand how things can go wrong in the early stages of development. In addition, it could potentially help determine whether or when chromosomal anomalies identified through preimplantation genetic testing (PGT) will ultimately resolve, as some studies have suggested they often do.[58] In other words, it could help clinicians assess when chromosomal anomalies identified through PGT are true anomalies or wrongly determined to be “unhealthy,”[59] which could have important implications for reproductive decisions based on PGT results. In addition, this research has the potential to increase the success of IVF and perhaps even to reduce miscarriages.[60] Extending embryo research beyond the 14-day rule could also help identify health risks, including the risk of diseases like holoprosencephaly, which occurs in 1 of out 250 conceptions.[61] As Dr. Magdalena Zernicka-Goetz, the researcher who developed the technique to grow human embryos for nearly 14 days, suggested, extending the rule would allow scientists to “achieve potential biomedical advances within an appropriate bioethical framework.”[62]

Nevertheless, the ISSCR proposal created quite a stir, given that the 14-day rule has governed embryo research for roughly 40 years.[63] Even more troubling was the lack of clear guidance as to how far the new line should extend. Some dissenters viewed this proposed extension as proof that the 14-day rule was just a ceremonial line in the sand, drawn less by ethical principles than by technological capacity. The proposed change, they noted, only arose when it became technologically feasible to grow embryos longer. Others saw it as undermining the 14-day limit’s powerful signal to the public that scientists would not grow babies in labs.[64] As one group queried,

Once embryos can be gestated in artificial uteruses, why not go to one month, three months, or six months? Hell, why not up to the point of birth? These are developing human beings, but there will always be a utilitarian excuse![65]

In fact, just five years ago, the ISSCR had advised that research involving “[i]n vitro culture of any intact human preimplantation embryo or organized embryo-like cellular structure with human organismal potential, regardless of derivation method, beyond 14 days” should be prohibited[66] because there was “broad international consensus that such experiments lack a compelling scientific rationale, raise substantial ethical concerns, and/or are illegal in many jurisdictions.”[67] Critics argued that abandoning this long-established line just because it becomes technologically feasible highlights the opportunism of the original line at best, and is morally repugnant at worst.[68] Some even suggested that the rejection of the prior ethical reluctance to extend the rules degrades humanity.[69] Perhaps the gentlest critique focused less on substance and more on process in faulting the ICSSR for failing to engage the public in this decision.[70]

B. The Viability Line

At the same time the ICSSR is promoting an extension of the 14-day rule, there is a simultaneous push in the opposite direction to move away from the viability line with respect to abortion regulation in the United States. Like the 14-day rule, viability has long served as a marker with regulatory significance. Under constitutional interpretation, states may not ban abortions before this point. Despite the establishment of such a line nearly half a century ago in the 1973 decision, Roe v. Wade,[71] and its reaffirmation nearly 20 years later in Planned Parenthood of Southeastern Pennsylvania v. Casey,[72] the viability line is now at risk of significant erosion.

1. The Rationale for the Viability Line

In Roe v. Wade, the Court established a constitutional right to terminate a pregnancy rooted in a right to privacy, which the Court had somewhat controversially identified within “the penumbras of the Bill of Rights.”[73] The Court acknowledged, however, that the state had competing interests in the potential life and the health and well-being of the mother, but found that they changed with the stage of the pregnancy.[74] It concluded that neither interest was compelling in the first trimester, although the interest in the health of the mother became compelling at the end of the first trimester. Thus, the state could regulate abortions from the second trimester on to protect maternal health. The Court determined that the state’s interest in the potential life only became compelling at the beginning of the third trimester, or the point of viability,[75] which at the time was around 27 weeks’ gestation. From the third trimester on, therefore, the state could “proscribe abortion . . . except when . . . necessary to preserve the life or health of the mother.”[76]

The Court drew the line at viability after noting the wide-ranging views and lack of consensus within medicine, philosophy, and theology as to when “life begins,”[77] with lines drawn at conception (which can mean either fertilization or implantation[78]), quickening (when the pregnant person feels fetal movement), viability, or live birth.[79] The Court also distinguished the concept of the beginning of “human life” from the legal status of personhood under the Constitution.[80] The Court did not address the varied meanings of even the term “human life,” which can refer to the scientific description of the beginning of the biological human organism or the point when the biological organism has moral status as a human or other entity.[81]

Finding various references within the Constitution to persons, the Court noted that “in nearly all these instances, the use of the word ‘person’ only has application postnatally. None indicates, with any assurance, that it has any possible prenatal application.”[82] Moreover, it pointed out that, for the better part of the 19th century, abortions were “far freer,” suggesting that personhood “does not include the unborn.”[83] Thus, in light of the lack of a uniform view about the status of the fetus, the court relied on viability as a demarcation of the point when the state interest becomes sufficiently compelling to limit the woman’s constitutional right. The Court reasoned that allowing abortions to be generally prohibited at the beginning of the third trimester when the fetus “presumably has the capability of meaningful life outside the womb,” provides a line that has “both logical and biological justifications.”[84]

Nearly 20 years later, Planned Parenthood v. Casey[85] revisited the question about the constitutional right to abortion. While many thought the Court would overturn Roe, the Court upheld its “essential holding.”[86] Nevertheless, it did make important changes to abortion jurisprudence: it recharacterized the constitutional interest as a liberty, rather than privacy, interest; it changed the standard of review from strict scrutiny to the undue burden test, which prohibits the state from imposing substantial obstacles on the ability to choose an abortion; and it eliminated the trimester framework.

Even so, the Court retained the viability line, recognizing “the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State.”[87] It found that “before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”[88] And it pointed out that even though any “judicial act of line-drawing may seem somewhat arbitrary,” the position taken by Roe was “reasoned,” “elaborated with great care,” and “twice reaffirmed . . . in the face of great opposition.”[89] The Court further stated that viability was the most “workable” line.[90] Although some developments in medicine might “affect the precise point of viability,” which by the time Casey was decided was about 24 weeks’ gestation, the Court found this “imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter.”[91] Finally, it found that the line “has, as a practical matter, an element of fairness” because, in failing to terminate before viability, the woman might be seen as consenting “to the State’s intervention on behalf of the developing child.”[92] For all these reasons, the Court concluded that when “there is a realistic possibility of maintaining and nourishing a life outside the womb, . . . the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.”[93]

2. The Vulnerability of the Viability Line

Since Casey was decided, the validity of the viability line had not been a subject of debate before the Supreme Court – until now. All the abortion cases it has considered since Casey have dealt with abortion regulations or bans of particular abortion procedures.[94] That has not, however, stopped legislatures from pushing the envelope by enacting pre-viability bans at various stages. Such efforts have repeatedly been enjoined by federal appellate courts on the grounds that such laws blatantly violate the long-established constitutional principle that abortions may not be banned prior to viability.[95] Given the strength of this precedent, the Court has not granted certiorari to review those injunctions.

With Justices Brett Kavanaugh and Amy Coney Barrett now filling the former seats of Justice Anthony Kennedy and the late Justice Ruth Bader Ginsburg, however, the balance of the Court has tipped in a decidedly more hostile direction with respect to reproductive rights. This shift alone may explain the Court’s willingness to consider the question at issue in Dobbs: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”[96]

The issue arises because Dobbs concerns a Mississippi law that bans all abortions (except in cases of medical emergencies or severe fetal anomalies) after 15 weeks’ gestation, that is, well before viability.[97] The statute’s legislative findings offer several arguments for moving the line earlier than viability, including claims about fetal development and maternal risk, in addition to differences between abortion laws in the United States and other countries.

For example, the findings describe various features of fetal development from five to 12 weeks’ gestation, including: the beginning of a heartbeat at five to six weeks; the presence of eyes, teeth, and external genitalia at nine weeks; the beginning formation of hair, fingernails, and toenails at 10 weeks; the development of the diaphragm and the possibility of hiccupping at 11 weeks; and the capacity to open and close fingers or make sucking motions at 12 weeks.[98] Relying not on a medical treatise, but instead on a Supreme Court decision that allowed the ban of a late-term abortion procedure, the findings assert that the fetus “has taken on ‘the human form’ in all relevant respects” at 12 weeks.[99] They also include the ambiguous claim that at 12 weeks, the fetus “senses stimulation from the world outside the womb.”[100] A more accurate statement is that there may be evidence of fetal reflexes in response to external stimuli,[101] which alone tells us nothing about fetal perception of pain.

The legislative findings also assert that “the relative [maternal] physical and psychological risks escalate exponentially as gestational age increases.”[102] They further declare, without citation, that “as the second trimester progresses, in the vast majority of uncomplicated pregnancies, the maternal health risks of undergoing an abortion are greater than the risks of carrying a pregnancy to term.”[103] While it is true that the risks associated with abortion increase with gestational age,[104] childbirth still remains riskier than abortions.[105] Indeed, evidence suggests that even the risks of later abortions are not greater than the risks of childbirth, at least for those with unwanted pregnancies.[106]

Finally, the law’s legislative findings note that the United States is “one (1) of only seven (7) nations in the world that permits nontherapeutic or elective abortion-on-demand after the twentieth week of gestation,”[107] and “seventy-five percent (75%) of all nations do not permit abortion after twelve (12) weeks’ gestation” with most providing health and life exceptions.[108]

That argument, however, fails to address two important points. First, these countries have broad exceptions to those lines, essentially allowing abortion much further into pregnancy than the lines suggest.[109] Second, these countries offer protections that simply do not exist in the United States, making the earlier limits less problematic than they would be in this country. For example, many countries with earlier abortion limits on their books provide far better access to sex education, health care, and contraception than in the United States, thus making it easier to avoid pregnancy, particularly for the groups most likely to seek abortion (young and lower-income populations).[110] While contraceptive access in the United States has improved and led to fewer abortions,[111] we are still woefully deficient in this regard, particularly with the groups most vulnerable to unwanted pregnancies.[112] Similarly, many of the countries with earlier abortion limits offer far more support and wider social nets to make it more feasible to have a child and provide adequate care for the child.[113] It is notable that the very states in the United States that have enacted the most stringent restrictions on abortion offer no corresponding benefits to make it easier to prevent pregnancy, to obtain health care, and to care for a child once one gives birth.[114] Thus the push to eliminate the viability line focuses only on the state’s interest in the potential life with no consideration or acknowledgement of the burdens on the pregnant person or the child that may be born if abortion is prohibited.

While Mississippi’s petition for certiorari stated that “the questions presented . . . do not require the Court to overturn Roe or Casey,”[115] its brief on the merits devoted several pages to argue for the abolishment of Roe altogether.[116] Notably, the brief on the merits was filed after Justice Barrett replaced Justice Ginsburg, reflecting Mississippi’s clear understanding of the implications of the Court’s new, conservative 6-3 majority.

With respect to the precise question about the viability line, Mississippi argues that the term “viability” does not appear in the Constitution.[117] It also argues there is a history of banning abortions before viability.[118] The state, however, fails to note that there is also a history of allowing abortions well into pregnancy. In addition, Mississippi asserts, without support, that the state interest in fetal life is equally compelling before and after viability.[119] Drawing from the Act’s legislative findings, it points to the increased risks of abortion after 8 weeks’ gestation and a 38% increase in the “relative risk of mortality . . . for each additional week at higher gestations.”[120]

Finally, the petition for certiorari also points to “‘advances in medical and scientific technology that have greatly expanded our knowledge of prenatal life’” to argue that the viability line is problematic.[121] It suggests the viability line does not allow the state to weigh “what it may learn about unborn life – about pain perception, how early a child fully takes on the human form, and more.”[122] And it asserts, based on the testimony of a single “expert,” that the fetus can detect and respond to pain as early as 10 to 12 weeks (based on the last menstrual period), is “capable of suffering” at 15 weeks, and can survive at ever earlier stages.[123]

It is worth noting that several of these claims are contested. A 2005 article in the Journal of the American Medical Association reviewed studies that focused on fetal pain, anesthesia, and analgesia.[124] Synthesizing this research, the article concluded that the sensory system necessary to feel pain develops between 23 and 30 weeks’ gestation.[125] It states further that in order for the fetus to perceive pain, the fetus must also be able to interpret the sensory information. The limited data suggest that this is unlikely to occur until 29 weeks’ gestation or later.[126]

As we have seen, both of these long-held lines are very vulnerable, but for very different reasons. We turn now to the implications of this vulnerability.

II. The Contradiction in the Eroding Lines

These two related stories reveal the current instability of long-standing lines governing embryo research internationally and pregnancy terminations in the United States. To be sure, there are important differences with respect to the two lines and contexts. One line concerns an international consensus that is binding law in some countries and merely a guideline in the United States. The other is (or at least, has been) binding constitutional law across the United States. One line was drawn by a committee of scientists and ethicists; the other by a panel of Supreme Court Justices. The pressures to erode these lines are also different. In the case of the 14-day rule, new technological findings have driven efforts to extend the limit. In the case of the viability line, although technological advancements allow us to view the fetus in utero more fully and in more detail, the most relevant change is the composition of the Court, with a decidedly strong majority sympathetic to erosion of the viability line. Finally, the potential lives at issue exist in very different locations, a laboratory and a pregnant person’s womb. As a result, the purposes for which the lines are drawn are quite different. One line impacts the scope of research in embryology; the other, pregnant people’s ability to control their bodies.

Nevertheless, there are important points of similarity. First, these lines emerge in the context of long-standing controversies regarding the origins of “human life” – not in the biological sense, but in the moral sense. Second, although the lines are drawn based on biological phenomena, they are also based on how those phenomena are understood from different moral, religious, and societal viewpoints. Third, the move to erode these lines comes in part from new developments—technological changes allowing for embryo growth beyond 14 days and technological changes that allow us to better visualize the fetus in utero as well as changes in the composition of the Court. Fourth, and perhaps most significant, these long-established lines reflect a compromise of sorts, avoiding adherence to the most extreme positions regarding the status of the embryo or fetus. The lines are motivated by a desire to make the ultimate regulation politically palatable in a pluralistic world where everyone will not fully agree. It is these compromises that are at stake in the potential erosion of these lines.

Scholars have noted how compromise underlies the 14-day rule. For example, Professor Cavaliere suggests it is best understood as a “moral relativistic approach” regarding the conflicting positions. That is, it represents a view that “the truth and standing of moral judgments is not universal, but relative to the social, political, and cultural context in which these moral judgements arise.”[127] According to this account, the rule reflects an effort to give equal respect and consideration to the differing views regarding embryo research, the moral status of embryos, and the value of embryo research to society, as opposed to an attempt to develop a position closest “to an absolute moral truth.”[128]

Professor Charo similarly describes the recommendations offered by the Human Embryo Research Panel in the United States, which relied on the 14-day rule to limit federally funded embryo research. She refers to the line as a “generally reasonable political compromise.”[129] Indeed, she argues it should have been acknowledged as such, rather than as “definitive moral reasoning.”[130] Charo argues persuasively that “it is impossible for a governmental body to determine the moral status of the embryos” because “there is no single methodology for ethical analysis.”[131] Not only are there conflicting theories regarding the status of the embryos, but there are also conflicting methodologies “for resolving conflicts among competing ethical theories. . . . Bioethics offers no means for choosing a single theory to apply to the debate.”[132]

As is true of all compromises, the compromise regarding embryo research left both sides unsatisfied because it does not reflect the purity of the positions at either extreme. It does not identify embryos as “human life” in the moral sense, at least prior to the 14-day stage, and it does not treat embryos after that point as mere tissue upon which research can be conducted without serious moral concern. To borrow Professor Cavaliere’s description, the decision-making process was not aimed at achieving “perfect philosophical reasoning.” Instead, the effort to achieve compromise was intended to provide “workable regulations” that would be “socially palatable.”[133]

The development of the viability line mirrors this effort to achieve compromise. The multitude of briefs submitted to the Court when Roe and Casey were decided presented the Court with deeply contradictory views regarding the status of the fetus and the interests of pregnant people and society. The Court took pains to acknowledge these varying views in both Roe and Casey.[134] For example, the Roe opinion acknowledged

the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standard one established and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.[135]

In addition, just as the Warnock report did not take a particular stand regarding the status of the embryo, the Supreme Court explicitly refused to articulate when “life” begins or whether a fetus is a person.[136] Recognizing that some might view the viability line as arbitrary, it nevertheless justified this approach because it was the most “workable” rule.[137] The Court clearly strove to find a line that would be acceptable in a pluralistic society, where agreement cannot be achieved regarding such deeply held views about the beginning of “human life” (in a moral sense) or personhood. Thus, the ruling did not satisfy those who believe life begins at conception, nor did it satisfy those who believe it begins at birth, or who believe that bodily autonomy should allow full control over one’s body throughout the entirety of the pregnancy. But as a compromise, it accords with the views of many Americans that abortion should be allowed, albeit not throughout the entirety of pregnancy.[138] In other words, most American’s views on abortion do not lie at the extremes.[139]

In addition, both lines rely on a kind of logic. In each instance the entity at stake takes on a kind of individuality. For example, although in one sense there is not much distinction between a 13-day old embryo and a 15-day old embryo, in another sense, day 15 marks an important point of individuation because the embryo can no longer become a twin.[140] It is of course not the only line that could be drawn. But in the context of embryo research, where the embryo exists ex vivo, this is the moment when true individuality begins. It is also the point when the primitive streak forms, the earliest moment where the origins of sentience emerge. Thus, it represents both a compromise and a logical line that has long been accepted internationally.

Similarly, viability also marks an important moment of individuation in fetal development because it is the point when the fetus can survive outside the womb and is no longer dependent on the body of the pregnant person for survival. Individuation in this context looks quite different from individuation in the embryo research context because abortion implicates bodily autonomy. Thus, the significance of individuation in the context of abortion has to be understood in terms of the relationship between the fetus and the person whose liberty, autonomy, and bodily integrity are at stake. Radhika Rao has traced the logic and “ingenious compromise” of the viability line, which she describes as a “multi-layered concept that encompasses many meanings” and that “correlates with a phase of fetal development thought to be critical from the standpoint of several different theories.”[141] She also notes that viability lies within the period when sentience is developing in the fetus.[142] Thus, viability corresponds with “‘independent beingness and . . . distinctly human beingness.’”[143] Again, viability is not the only line that could be drawn. Indeed, the early American common law drew the line at the point of quickening, when the pregnant person feels fetal movement.[144] But in the view of some, it is “perhaps the only point at which a principled line may be drawn during the continuum of pregnancy.”[145]

In a pluralistic democracy, these compromise approaches to line drawing have great value, especially when no single line will satisfy everyone. In many ways, it is difficult to devise a better way to develop policy regarding as contentious an issue as research on embryos or termination of pregnancies. And thus, efforts to redraw these lines must consider the broader societal impact of doing so in an increasingly polarized society.

III. Contradictory Line Erosions and Slippery Slopes

One of the challenges of the current efforts to erode the 14-day rule and the viability line is that they do not provide a logical stopping point. Both potential changes present a serious slippery-slope problem. But they do so in contradictory and problematic ways.

The justification for the extension of the 14-day rule is two-fold: (1) technology now allows embryos to grow beyond 14 days and (2) embryo research provides valuable knowledge. Technological capacities will continue to expand, however, pushing the line further and further into embryo development. Meanwhile, the benefits of research will always exist. Thus, there is no logical reason to draw the line at any point, under this theory, except based on what technology allows.

While it is not yet possible to grow an embryo into a fully developed human being ex vivo, researchers are developing the ability in animal models to allow fetuses to grow in artificial wombs – a process called ectogenesis.[146] If the rationale for extending the 14-day line is based on both what is technologically possible and the value of learning more about embryo/fetal development, then if human ectogenesis becomes possible, there seems to be no obvious limit to ex vivo research on embryos or even several month-old fetuses. We are clearly decades from having such technological capacity (if we ever will). But this rationale moves us down that slippery slope with no indication as to whether there will or should be stopping points along the descent.[147]

Similarly, there is no clear limit in the efforts to eliminate the viability line, except to prevent abortion altogether (which is undoubtedly the point of most pre-viability bans). If, as the State of Mississippi argues, the state’s interest in potential life is as compelling before viability as after, there is also no friction to this slippery slope. While Mississippi’s briefs suggest potential limits, none is persuasive. For example, Mississippi hints that fetal perception of pain could provide a new line when it argues (erroneously) that the fetus can experience pain as early as 12 weeks’ gestation.[148] Fetal pain arguably could offer a different and stable line in the abortion context. But if so, fetal perception of pain likely does not occur until 29 weeks’ gestation.[149] Under this approach, then, the line should be drawn after, not before, viability. Mississippi also references the point when the fetus takes on near complete fetal form as perhaps another potential limit. The problem with this line is its vagueness. How much like a human must it be? Is it the presence of fingernails? The fact that the fetus hiccups? Or something different? More important, why is this standard important?

Ultimately, it seems that the very point of challenging the viability line with a 15-week ban is precisely to push us all the way down the slippery slope. Mississippi’s brief on the merits makes that clear in devoting a full section on why Roe should be overturned.[150] In addition, only four months after the district court enjoined the 15-week ban, Mississippi enacted an even more restrictive law, banning abortion once cardiac activity can be detected.[151] The 15-week ban, it seems, was just an initial salvo to begin the slide toward allowing bans on all or almost all abortions.

Just as proponents of embryo research beyond 14 days now have technology on their side, opponents of the viability line (or abortion) now have a sympathetic Supreme Court majority on their side. When this article was in the final stages of edits, I suggested that, in theory, the Court might only allow some narrow exceptions to the viability line in certain limited cases. Or it might draw a new line, perhaps at 15 weeks or perhaps at the point the State claims the fetus can experience pain (whether or not scientific consensus supports that claim).[152]

Based on the tenor of the Justices’ questioning during oral arguments for Dobbs, however, I concluded that the least likely outcome would be for the Court to fully retain the viability line. For example, of the six conservative Justices, only Chief Justice Roberts seemed eager to avoid overruling Roe. Yet even he appeared interested in considering whether a 15-week limit might function as an adequate alternative to the viability line. He suggested that 15 weeks is “not a dramatic departure” from viability because women would still have a “fair choice” and the “opportunity” to choose to end a pregnancy.[153] Never mind how valuable those lost two months might be to people who don’t realize they are pregnant right away, who have experienced significant life changes, or for whom the legal restrictions or poverty makes it difficult to access abortions.

The other conservative Justices, however, seemed to have no interest in upholding a constitutional right to abortion at all. Justice Kavanaugh suggested it would be “scrupulously neutral” for the court to leave the issue of abortion to legislators and voters.[154] Justice Barrett shockingly implied that “safe haven” laws, which allow women to escape the burdens of parenthood by abandoning newborns with legal impunity, preclude the need for a constitutional right to abortion.[155] Justice Thomas hinted at his support for fetal personhood by repeatedly asking whether the states could criminalize pregnant people for drug use.[156] Justice Alito, in addition, to suggesting the viability line was arbitrary, pushed against the notion that Roe could not be overturned, pointing out that Plessy was rightly overturned because it was egregiously wrong.[157] Finally, Justice Gorsuch, who spoke the least, emphasized the unworkability of the current undue burden test, hinting at his distaste for the existing abortion jurisprudence.[158] Thus, based on the oral arguments, I concluded that at best, the Court was likely to erode the viability line; and at worst, it would slide us fully down the slippery slope by eliminating any line below which states cannot ban abortions.

The recent leak of a draft of the decision for Dobbs, however, has underscored how far the Court will almost certainly go. The caustic draft opinion authored by Justice Alito declares not only that the “viability line . . . makes no sense,” but also that “Roe was egregiously wrong from the start,” and therefore “Roe and Casey must be overruled.”[159] If the Court’s final decision adopts that holding, then the descent down the slippery slope with respect to abortion will have been swift, steep, and frictionless.

The potential slippery slopes that arise if the 14-day rule and viability line are eroded set us up for stark contradictions in the reproductive realm, even if the lines are not pushed to the full extent possible. Consider for example, Texas’s notorious, vigilante, anti-abortion law—Senate Bill 8—which allows individuals to sue abortion providers or others who assist a woman in seeking abortions when the heartbeat is detectable.[160] This law has successfully evaded federal review, as it was intended to do, after a series of attempts to have the Supreme Court enjoin the law.[161] As a result, it has chilled providers in Texas from providing all but very early abortions, preventing most Texans from accessing abortion. But for its unique enforcement mechanisms, which has made it difficult to enjoin in federal court, S.B. 8 is much like Mississippi’s and other states’ heartbeat bans. Because fetal cardiac activity (which legislatures describe as a fetal heartbeat) can be detected at roughly five to six weeks gestation,[162] these laws essentially ban abortions as early as five to six weeks. If these laws ultimately stand—as they likely will based on the leaked draft opinion—and research can extend well beyond 14 days, we could imagine an America with incredible incongruities.

To see why, one needs to understand the role the last menstrual period plays in determining the age of the fetus.[163] The gestational period begins from the first day of the last menstrual period, even though there is no conceptus at this point; fertilization typically does not occur for another two weeks.[164] Assuming a regular menstrual cycle, the first period is missed at four weeks’ gestation, but the embryo has only been growing for two weeks.[165] Thus, by week four, the implanted embryo is at essentially the same stage as the 14-day old embryo created in vitro.[166] A week or two later, around five to six weeks gestation, what will become the heart begins to flutter, and as early as week five, cardiac activity may be detectable via a vaginal ultrasound.[167]

If enforceable, therefore, fetal heartbeat bans would potentially prohibit abortions just one week after the line that has long barred embryo research. Even if the 14-day rule was extended by only a week or two, as some have suggested it should be,[168] it would allow embryo research beyond the point at which pregnancies can be terminated under heartbeat bans. Obviously, the further the expansion of embryo research and the earlier abortion bans are allowed, the greater the inconsistency. If technology eventually allows it, embryos could be grown into fetuses that might be studied at a developmental stage that mirrors that of viability. Meanwhile, pregnant people, in some states would not be able to terminate pregnancies after the fetal heartbeat is detectable, or, if Roe is overturned, at all.

Of course, one would expect the states that impose heartbeat or complete abortion bans to also restrict embryo research. After all, states have the authority to limit embryo research in part or entirely,[169] in contrast to the states’ limited ability to restrict abortions, bound as they currently are by the constitutional right to terminate a pregnancy before viability. This distinction reflects the fact that in the context of abortion, the state interest in fetal life is pitted against the liberty and bodily integrity interests of pregnant people, which do not exist with respect to ex vivo embryos.[170]

The result in the United States could theoretically be one in which embryos developing within people’s bodies are “protected” against any or very early abortions in some states, while in others, embryos could be grown ex vivo into advanced, even fetal, states, if technologically possible. At best, the cognitive dissonance would be startling, profoundly highlighting the deep polarization of our country. One might argue that it reflects the pluralism of America. But such a vision of “pluralism” would be problematic and unsettling, underscoring the two Americas we are becoming (have become?). This dystopian reality imagines the extreme positions dominating (in contradictory ways) as they move farther and farther from the more stabilizing point of compromise that has held for decades. Should such a reality emerge, we could face a problem reminiscent of the First Amendment’s “hecklers’ veto,” when hecklers dominate a conversation in the First Amendment context so that others may not speak.[171] In this case, however, the extreme views held by the minority would control and shape public policy. Such an outcome would be politically destabilizing because it pulls us so far from consensus.

This concern might suggest that the answer is to leave line drawing to the electorate, rather than scientists, ethicists, or Supreme Court Justices, and that we have it right with respect to embryo research because legislatures decide what research should be allowed. Thus, while the 14-day rule presents a guideline for research in the United States, states can choose to adopt it or not. And, like the federal government has done, states can completely deny the use of government funds for research that involves the creation of a human embryos for research or in which human embryos can be “destroyed, discarded, or knowingly subjected to risk of injury or death.”[172]

In the context of abortion, many opponents of Roe have argued that the lines should not be drawn by the judiciary; they argue there is no constitutional basis for the right because the terms “privacy” or abortion are not mentioned in the Constitution. Indeed, Justice Alito’s draft Dobbs opinion relies on precisely those arguments to overrule Roe and Casey. He declares that “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”[173] because the "Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. . . . "[174]

If Roe is overturned, as now seems very likely, more than half of the states are “certain or likely to ban abortions.”[175] While most Americans do not support banning abortion,[176] in some of the reddest states, the majority of the electorate believes that abortion should be illegal in most or all cases.[177] Under one view then, allowing the states to ban abortions merely reflects the pluralism of our country. Let red states ban abortions and embryo research, while blue states allow both.

The challenge in leaving this kind of decision to the electorate, however, is the profound impact that lack of access to abortion has on pregnant individuals. As Justice Kennedy noted in Lawrence v. Texas, when it comes to important liberty interests, the state may not impose the moral views of some, or even the majority, in ways that infringe those interests.[178] Thus, whether or not a majority believes that abortion should be banned or severely restricted, pregnant people, with deep interests in controlling their bodies and making decisions central to their lives, should not be subject to those whims.

A departure from the long-established viability line threatens to slide us in a direction that protects fetal life with little to no countervailing efforts to address the rights and interests of the pregnant person. Doing so with no clear end point is especially problematic. It presents a particularly slippery slope, that could undo the balance achieved between the state’s interest in potential life and the pregnant person’s strong interests in bodily and personal autonomy. Alito’s draft Dobbs opinion does just that in saying shockingly little about the pregnant person’s interests. The only hint that abortion might have any impact on pregnant people is his reference to laws that protect against pregnancy discrimination and guarantee leave for pregnancy or childbirth, insurance coverage or government assistance for the medical costs of pregnancy and childbirth, and laws that allow women to “drop off babies anonymously.”[179] Never mind that the reach of many of these protections is not universal. Nothing in the opinion acknowledges the significant intrusion on bodily integrity imposed by abortion bans; instead, the pregnant person is treated as a mere vessel for the fetus.

At its extreme, this perspective might lead a state to ban abortions even if they threaten the pregnant person’s life, as occurred in Ireland as recently as 2012.[180] The leaked draft Dobbs opinion makes the prospect of such laws in the United States even more imaginable. Not only does it uphold a 15-week ban that has no exception for rape or incest, but the opinion also makes no mention of the importance of exceptions for maternal health and life.[181] The deafening silence on that point may well embolden conservative states to draft draconian abortion bans with no exceptions whatsoever.[182]

While a very small minority of Americans believe that the two lives have equal value, there is deep division as to whether the fetus has the full rights of personhood. But there is no debate among the public as to the personhood status of the pregnant person. Thus, this slippery slope threatens, at best, to treat the interests of fetus and pregnant person as precisely equal and, at worst, privileges the interests of the fetus over the pregnant person. This is as far from compromise and consensus as is possible, particularly given that only 8% of Americans believe that abortion should be illegal without exception.[183] But most important, it is acutely troubling for those who must live with the physical and personal implications of having virtually no control over their bodies and lives once pregnant.

Worse, this outcome risks allowing religious principles to become state policy to the detriment of a limited portion of the population: those who can become pregnant, are pregnant, and would be negatively impacted by being forced to remain pregnant. At a minimum, it goes against the spirit of the free exercise clause in imposing religious views on the majority of citizens who may not share those views, weakening trust in the government and leading to deep inequities.

Should the Court take such an approach, it would undermine its legitimacy in the eyes of the majority of the electorate. We are already witnessing a deepening distrust of the Court and a belief that it has become primarily political. Indeed, its most recent approval ratings (only 40%) were the lowest since Gallup polls have been taken.[184] Notably this poll was conducted “shortly after the Supreme Court declined to block [the] controversial Texas [S.B. 8] abortion law.”[185] Given that the Court’s legitimacy is key to its rulings being followed, this is a potentially destabilizing development in a country whose democracy seems increasingly vulnerable.

Leaving to the electorate a determination of how far into embryo/fetal development research should be allowed does not raise the same concern about profoundly affecting the liberties of a particular group of people in the way that leaving decisions about abortion to the electorate does. Nonetheless, if entities with economic interests were to successfully lobby legislatures to allow ex vivo research to extend farther into fetal development than the majority of the electorate would support, one could imagine a growing distrust of research. The more the embryo takes on human forms, the more discomfort the public would likely feel, particularly when the sole justification would be to further research. Perhaps the legislatures would reflect the will of the people, but in a representative democracy, other powerful interests might push the legislatures to move well past the 14-day line.

As we have seen, erasing the long-held lines in these two contexts, particularly without clear and persuasive limits is problematic. Extending the 14-day rule because technology makes it possible to do so, without contemplating a limiting basis for a stopping point, has the potential to undermine trust with respect to the scientific community. Similarly, if the Court eliminates the viability rule because it now declares the State’s interest to be compelling with nothing new to support that notion, or if it simply overrules Roe outright as the draft opinion suggests it will, it undermines the public’s faith and trust in the judiciary, merely confirming the growing view that the Court has become deeply politicized.[186]

Having pointed out the dangers of these potential line erosions, however, I should emphasize that I am not suggesting well-established lines should never change.[187] Instead, I suggest that there are guiding principles to help decide when and how far to move established lines. I turn to those guidelines now.

IV. Guiding Principles

A. The Importance of Context

In exploring the dangers of eroding long-held lines and the slippery slope problems that exist in the reproductive realm, I end with a few guiding principles. First is the importance of context, which plays little role if one takes an absolutist position regarding the status of the embryo/fetus. If the embryo has personhood status, embryo research and abortion would never be acceptable. IVF would also be thwarted or maybe even prohibited because its success depends by necessity on potentially creating more embryos than desired pregnancies. Under a personhood theory, all IVF participants would be obligated to ensure that extra embryos would be implanted and carried to term because indefinitely freezing extra embryos, donating them to research, or destroying them would be morally unacceptable.[188] At the other extreme, if embryos and fetuses are merely tissue and not deserving of special respect, embryo research and abortion would never be problematic in any instance.

These extremes, however, deviate from the consensus view and make anything close to compromise impossible. Not only do they, as described above, lead to political destabilization, but those extremes also allow the putative nature of the embryo/fetus to determine everything, irrespective of context and purpose. In contrast, a more nuanced view that the embryo/fetus deserves respect because of its potential to become a person, requires a more focused consideration of the instrumental value of the embryo—not merely its nature[189]—as well as the purposes for and contexts in which the lines are drawn.[190] This is not to say that some intrinsic features of that potential life will never be relevant. The relevance of those features, however, will vary according to the context and competing interests and goals.

Thus, as noted earlier, individuation of the potential life has moral significance with respect to the 14-day rule and abortion; but the nature of individuation that matters is quite different in these two contexts. Where the bodily integrity interests of the pregnant person butt up against the societal interest in fetal life, the individuation line focuses on fetal independence from the pregnant person. The societal interest in potential life at earlier stages of development weighs less strongly against the profound bodily integrity interests of the pregnant person. But with respect to fetal research, where there is no competing bodily integrity interest, the individuation line of interest concerns the end of twinning potential and not biological independence because the embryo never depended on a person for its existence. In short, the context shapes our views of the moral relevance of these entities in important ways.

B. Guiding Principles

The fact that the 14-day and viability lines reflect compromise and have a logic and moral force undergirding them suggests that the bar for eroding these lines should be high. To be clear, I do not contend that established lines should never be altered simply because compromise had been achieved or because of slippery slope concerns. Instead, well-established lines should only be adjusted when certain criteria have been met. There must be evidence that circumstances have changed in ways that materially affect the contextual analysis, there must be a clear and cogent justification for the alteration, and the rationale should provide some friction along the slippery slope.

A useful example might be the approach to line drawing in the context of genetic modification in humans. Even before we had the capacity to modify the human genome, scientists and ethicists raised concerns about the prospect of such technology. When recombinant DNA (rDNA) technology became available, scientists voluntarily imposed a moratorium on rDNA research to allow time to consider the ethical and environmental concerns. Ultimately, the moratorium was lifted and replaced with a regulatory structure for detailed oversight of rDNA research and genetic modification once it became possible in humans. Part of the review process required approval by the Recombinant DNA Advisory Committee, which oversaw protocols and novel approaches to genomic modification, considering not only the safety issues, but also ethical concerns.[191]

From the beginning, regulators drew a clear line in the sand between somatic and germline modification because of concerns about the heritability of germline genetic alterations, including the potential risks to future generations, lack of consent from future generations, fears it might lead to genetic enhancement, the potential to exacerbate inequities, threats to the gene pool, and the fact that we understand so little about its potential impact.[192] This line remained, even when scientists had the capacity to alter the germline by genetically modifying embryos.[193] When CRISPR emerged as a cheap, effective, and easy-to-use tool for gene editing,[194] it made the ability to do germline editing that much easier. Nevertheless, in 2015, the director of the National Institutes of Health declared the importance of maintaining the line between germline and somatic genetic modification.[195] Congress too responded by effectively banning germline gene editing when it prohibited the FDA from reviewing any protocols involving germline genetic modifications, whether or not federal funds are allowed.[196] Of course, the notorious use of germline gene editing by Dr. He, which resulted in the birth of genetically altered children,[197] drew particular attention to the question of whether to preserve the germline/somatic divide.

Recently, there has been a gradual shift in attitudes toward this long-held line, with a growing number of groups countenancing the possibility of allowing germline gene editing once the technology is demonstrated to be safe—but only in very limited cases, and with specific restrictions.[198] Although this discussion is still underway, the approach has been to balance the risks and the potential benefits in a way that is cautious, incremental, and not unbounded. It is not based simply on whether or not technology makes it possible to extend the line. Instead, groups have suggested some allowance of germline gene editing if data suggest technological advancements significantly reduce the risks associated with the technology. Moreover, they all suggest minor extensions in limited instances where there are no real alternatives to germline gene editing, and where the editing would avoid significant harms to future children.[199] Importantly, some of the guidance from international committees emphasizes the importance of achieving public consensus and engagement before moving forward,[200] an approach that helps build trust in the process of drawing new lines. In short, the proposed adjustments of the long-held somatic/germline divide rely on evidence of material changes in the context (e.g., significantly safer technology), special justifications (preventing serious harm), and limits that prevent a rapid descent down the slippery slope where germline editing would be allowed in any and all instances (by limiting it to scenarios where there are few or no alternatives). The debate about lines in this context has not yet been resolved, but the discussion so far suggests an approach that can help reduce the risk of a polarizing and destabilizing erosion of the previous line.

With respect to guidelines for embryo research, it is not enough to note merely that technology now allows us to do embryo research beyond 14 days. We must consider whether there is a special justification for extending research in light of the special respect owed to embryos, and whether there are alternatives. Opening up the possibility of eradicating the long-held 14-day rule with no well-articulated basis as to when and how such an extension should apply undermines the political legitimacy of the approach and the public trust in the process.

Some have proposed that the line should only extend a week or two, not just because we can, but because there is something special and important about that period from the perspective of research. As noted earlier, studying embryonic development between days 14 and 28 is particularly valuable not only because the body plan is just beginning to take shape, but also because it may provide important insights into how embryo development can go awry, which could potentially improve the success of IVF and perhaps even reduce miscarriages. This research could ultimately be valuable in helping to protect potential life and the health of future children by providing information to prevent miscarriages and serious developmental conditions.[201]

But this justification is not merely that an extension would provide more information about embryo and fetal development. Part of the rationale for extending embryo research to day 28 is because so little is known about embryos at this stage given the challenges in obtaining tissue from spontaneous abortions at such an early gestational age. In contrast, we have alternative methods to study embryos that have developed beyond 28 days. At that point, people are more likely to realize they are pregnant, thus making it easier to obtain spontaneously aborted embryos. As a result, a bounded extension of the 14-day rule based on the unique challenges of research on embryos before day 28 would reflect a new compromise of sorts. Importantly, it would provide some friction on the slippery slope, rather than moving us down it with nothing to stop a full descent. While such a limited extension would not satisfy everyone, it is likely to generate more public trust, especially if there is public discussion. I do not attempt to resolve here whether this new line is ultimately appropriate. Instead, my point is that this kind of measured extension is an example of moving an established line based on special justifications and with clear limits.

In the context of abortion, however, nothing has changed in principle or technologically to alter the contextual analysis or provide a special justification for moving the viability line. We may have the technology to see the fetus more clearly, but that does not alter the profound bodily integrity and liberty interests for the pregnant person. Perhaps one day technological advancements, like safe human ectogenesis, may alter the context justifying serious reconsideration of the viability line. Whether human ectogenesis or other technological advancements would ultimately justify a new line is beyond the scope of this piece. The key is that, so far, nothing has changed in meaningful ways to warrant an erosion of the viability line, or to warrant a slide fully down the slippery slope, which the Court seems poised to do if the draft Dobbs opinion’s overruling of Roe becomes the law of the land. At this point, the only significant change is the composition of the Court, which offers no principled basis for eroding the viability line, particularly when the balance of interests between the pregnant person and potential life remains the same.

I end this section by noting that, in outlining the contradictory attempts to erode two long-standing lines in the reproductive realm, my goal is not to argue that lines can never be moved simply because of slippery slope concerns. The slippery slope argument is complex and often invoked to justify the status quo. Rarely do scholars fully explore the precise danger of sliding down such a slope or analyze how to determine when slippery slopes are genuinely problematic or not. I concede that this piece too fails to fully grapple with what is at stake regarding slippery slopes.

Rather than explore the power and limits of slippery slope arguments, which I save for future work, my claim is more modest in suggesting that descending down the slippery slopes in this context takes us far from valuable compromises that have been achieved with respect to deeply contentious religious and moral issues. My goal is merely to advocate for caution with respect to these slippery slopes and to suggest certain principles that might avoid a rapid descent down such slopes when policy makers contemplate eroding or eradicating long-set lines.

Conclusion

Line drawing is always difficult, especially when the lines involve profoundly divisive issues related to embryos and fetuses. But given that no lines will please everyone, efforts must be made to draw lines that consider some kind of balancing of interests, rather than having one set of interests trump the other. When lines have been in place for decades and shaped norms, it is even more troubling to eradicate those lines, especially if there is no clear limiting principle in doing so. Otherwise, the erosion is boundless and risks taking the policy to one of the extremes that the compromise had tried to avoid. In the case of embryo research and abortion, unbounded line erosion pushes policies in two completely different directions with respect to the value of fetal and embryonic life. At its extreme, the result will surely be increased polarization and a deepening of distrust of decision makers. The protests across the country and outside some of the Justices’ homes based on the leaked Dobbs draft are concrete evidence of just that. Such effects reach far beyond just the reproductive context, especially at a time when polarization and distrust are wreaking havoc within our democracy.

  1. See discussion infra Part I.

  2. Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021).

  3. Id.

  4. State Bans on Abortion Throughout Pregnancy, Guttmacher Inst. (Jan. 1, 2022), https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions.

  5. Indeed, as I discuss later, while this piece was in the final stages of edits, a draft opinion of the Court was leaked indicating that the Court’s change of heart has been so great that it is now ready to overturn Roe v. Wade outright. See infra text accompanying note 158.

  6. The Int’l Soc’y Stem Cell Res., Guidelines for Stem Cell Res. & Clinical Translation, Version 1.0 13 (May 2021), https://static1.squarespace.com/static/611faaa8fee682525ee16489/t/62ed69b184e2ed258e6eb7e4/1659726257773/isscr-guidelines-for-stem-cell-research-and-clinical-translation-2021.pdf.

  7. Ethics Advisory Board: Dep’t Health, Ed., & Welfare, Report & Conclusions: HEW Support of Research Involving Human In Vitro Fertilization and Embryo Transfer (May 4, 1979), https://repository.library.georgetown.edu/bitstream/handle/10822/559350/HEW_IVF_report.pdf?sequence=1&isAllowed=y.

  8. Kendall Powell, What’s Next for Lab-Grown Human Embryos?, 597 Nature 22, 23 (Sept. 2, 2021), https://media.nature.com/original/magazine-assets/d41586-021-02343-7/d41586-021-02343-7.pdf; Giulia Cavaliere, A 14-Day Limit for Bioethics: The Debate Over Human Embryo Research, BMC Med Ethics 18, 38 (2017), https://doi.org/10.1186/s12910-017-0198-5.

  9. Jonathan LaTourelle, Human Fertilisation and Embryology Act (1990), Embryo Project Encyclopedia (Dec. 12, 2019), http://embryo.asu.edu/handle/10776/8270.

  10. Id.

  11. Id. The group’s publication of its recommendations, The Warnock Report, provides the framework for the Human Fertilisation and Embryology Act in the United Kingdom, which oversees the research and clinical work of assisted reproductive technology in the UK, id.

  12. Cavaliere, supra note 8. Apparently, the suggestion of the 14-day rule came from one of the developmental biologists who served on the committee, id.

  13. Karen Weintraub, Should Scientists Be Allowed to Grow Human Embryos in a Dish Beyond 14 Days?, USA Today (May 2, 2021), https://www.usatoday.com/in-depth/news/health/2021/05/02/embryo-research-14-day-rule-under-review-raising-ethical-questions/6916582002/. There are differences as to how this rule is described, id. “Some explicitly refer to gastrulation—when three different cell layers appear—or the formation of the primitive streak; others mention only the 14 consecutive days of development. In most cases, however, what seems to be crucial is the stage of development that the 14th day typically represents, not the consecutive number of days in culture,” id. Insoo Hyun, Amy Wilkerson & Josephine Johnston, Embryology Policy: Revisit the 14-Day Rule, 533 Nature 169, 170 (May 12, 2016), https://www.nature.com/articles/533169a.

  14. Bonnie Steinbock, Moral Status, Moral Value and Human Embryos: Implications for Stem Cell Research, in Oxford Handbook of Bioethics 416 (Bonnie Steinbock ed. 2007).

  15. Id. at 421.

  16. Id.

  17. Id.

  18. Id.

  19. Cavaliere, supra note 8.

  20. Embryology, Gastrulation, StatPearls (Apr. 15, 2021), https://www.ncbi.nlm.nih.gov/books/NBK554394/; Primitive Streak—Embryonic Development and Stem Cells, LifeMap Discovery, https://discovery.lifemapsc.com/in-vivo-development/primitive-streak (last visited Apr. 13, 2022). This process of gastrulation occurs roughly between 14 and 22 days after fertilization, id. Powell, supra note 8, at 22.

  21. Powell, supra note 8, at 23; Weintraub, supra note 13.

  22. Hyun et al., supra note 13, at 170.

  23. Id.

  24. Id.

  25. Steinbock, supra note 14, at 421.

  26. Cavaliere, supra note 8, at 38.

  27. R. Alta Charo, The Hunting of the Snark: The Moral Status of Embryos, Right-to-Lifers, and Third World Women, 62 Stanford L. & Pol’y Rev. 11, 11 (1995). The Human Embryo Research Panel in the United States issued similar recommendations to the Director’s Advisory Committee to the National Institutes of Health regarding the federal funding of embryo research, id. Specifically, it recommended that such funding be limited to research that used embryos only until the fourteenth day of development, and that embryos be used sparingly and only when research could not be done on animals, id. Professor Charo describes this process as similarly involving the consideration of the competing moral views regarding embryos, id. She concludes that it reflects “a generally reasoned political compromise,” id.

  28. See Steinbock, supra note 14, at 421-22.

  29. Eddie Heipel, ISSCR’s Reversal of the 14-Day Rule, Charlotte Lozier Inst. (June 25, 2021), https://lozierinstitute.org/isscrs-reversal-of-the-14-day-rule/.

  30. Charo, supra note 27, 16-17; see also Cavaliere, supra note 8, at 38.

  31. Heipel, supra note 29.

  32. Antonio Regalado, Scientists Plan to Drop the 14-Day Embryos Rule, A Key Limit on Stem Cell Research, Wired (Mar. 16, 2021), https://www.technologyreview.com/2021/03/16/1020879/scientists-14-day-limit-stem-cell-human-embryo-research/.

  33. UK Dep’t Health & Soc. Security, Report of the Committee of Inquiry into Human Fertilisation and Embryology (1984).

  34. Ad Hoc Group of Consultants to the Advisory Committee to the Director, Nat’l Ints. Health, Report of the Human Embryo Research Panel (1994), https://repository.library.georgetown.edu/bitstream/handle/10822/559352/human_embryo_vol_1.pdf?sequence=1&isAllowed=y.

  35. Powell, supra note 8, at 22.

  36. Hyun et al., supra note 13, at 170.

  37. Powell, supra note 8, at 23 (noting that some countries, like Germany and Austria, prohibit any research on human embryos); Nidhi Subbaraman, Limit on Lab-Grown Human Embryos Dropped by Stem-Cell Body, Nature (May 26, 2021), https://www.nature.com/articles/d41586-021-01423-y.

  38. Weintraub, supra note 13.

  39. Subbaraman, supra note 37.

  40. Weintraub, supra note 13.

  41. Powell, supra note 8, at 23; Janet Carver et al., An In-Vitro Model for Stromal Invasion During Implantation of the Human Blastocyst, 18 Hum. Reprod. 283 (2003), https://academic.oup.com/humrep/article/18/2/283/639212 (growing embryos until 9 days); Hyun et al., supra note 13, at 169 (noting that they have rarely gone past 7 days).

  42. Aryeh Warmflash et al., A Method to Recapitulate Early Embryonic Spatial Patterning in Human Embryonic Stem Cells, 11 Nature Methods 847 (2014), https://www.nature.com/articles/nmeth.3016; Martin F Pera et al., What If Stem Cells Turn into Embryos in a Dish?, 12 Nature Methods 917 (2015), https://www.nature.com/articles/nmeth.3586.

  43. Alessia Deglincerti et al., Self-Organization of the In Vitro Attached Human Embryo, 533 Nature 251 (2016), http://dx.doi.org/10.1038/nature17948; Marta N. Shahbazi et al., Self-Organization of the Human Embryo in the Absence of Maternal Tissues, 18 Nature Cell Bio. 700 (2016), http://dx.doi.org/10.1038/ncb3347; Janet Rossant, Implantation Barrier Overcome, 533 Nature 182 (2016), http://dx.doi.org/10.1038/nature17894 (describing this research).

  44. Subbaraman, supra note 37.

  45. Yuyu Niu et al., Dissecting Primate Early Post-Implantation Development Using Long-Term in Vitro Embryo Culture, 366 Sci. 798 (2019), https://www.science.org/lookup/doi/10.1126/science.aaw5754.

  46. Hyun et al., supra note 13, at 170.

  47. Steinbock, supra note 14, at 416. See, e.g., Cavaliere, supra note 8; Hyun et al., supra note 13.

  48. The Int’l Soc’y Stem Cell Res., supra note 6, at 13.

  49. Id.

  50. Id.

  51. Id.

  52. Weintraub, supra note 13.

  53. Id.; Powell, supra note 8.

  54. Steinbock, supra note 14, at 23.

  55. See J. S. Cohain et al., Pregnancy Childbirth, 17 BMC 437 (2017) (43% of women presenting for delivery had at least one early spontaneous abortion).

  56. See generally, Amy M. Branum & Katherine A. Ahrens, Trends in Timing of Pregnancy Awareness Among US Women, 21(4) Maternal Child Health J. 715 (2017) (noting that women on average become aware that they are pregnant around 5.5 weeks’ gestation).

  57. Weintraub, supra note 13.

  58. See Sonia M. Suter, Legal Challenges in Reproductive Genetics, 115 Fertility & Sterility P282 (2021).

  59. Powell, supra note 8, at 23.

  60. Isabella Cueto, New Research Casts Fresh Doubt on a Common Procedure That Promises to Increase the Odds of IVF, StatNews (Nov. 26, 2021), https://www.statnews.com/2021/11/26/ivf-pregnancy-pgta-genetic-testing/. It is still uncertain how helpful IVF ultimately is in reducing miscarriage rates, id.

  61. Insoo Hyun et al., Human Embryo Research Beyond the Primitive Streak, 371 Sci. 998 (Mar. 4, 2021), https://www.science.org/doi/full/10.1126/science.abf3751.

  62. Weintraub, supra note 13. Dr. Zernicka-Goetz suggests extending the limit just one week to 21 days, id.

  63. Regalado, supra note 32.

  64. Id.

  65. Wesley Smith, Scientists Want to Kill More Unborn Babies for Unproven Embryonic Stem Cell Research, LifeNews (Mar. 18, 2021), https://www.lifenews.com/2021/03/18/scientists-want-to-kill-more-unborn-babies-for-unproven-embryonic-stem-cell-research/.

  66. The Int’l Soc’y of Stem Cell Res., Guidelines for Stem Cell Res. and Clinical Translation 7 (May 12, 2016), https://www.isscr.org/docs/default-source/all-isscr-guidelines/guidelines-2016/isscr-guidelines-for-stem-cell-research-and-clinical-translationd67119731dff6ddbb37cff0000940c19.pdf.

  67. Id.

  68. Weintraub, supra note 13.

  69. Id.

  70. Subbaraman, supra note 37.

  71. Roe v. Wade, 410 U.S. 113 (1973).

  72. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 833 (1992).

  73. Roe, 410 U.S. at 152.

  74. Id. at 164-65.

  75. Id.

  76. Id.

  77. Id. at 159.

  78. The Court did not make this distinction, however.

  79. Roe, 410 U.S. at 159 -160 (noting that the “wide divergence of thinking on this most sensitive and difficult question”).

  80. Id. at 156-58.

  81. Cavaliere, supra note 8.

  82. Roe, 410 U.S. at 157.

  83. Id. at 157-58.

  84. Id. at 163.

  85. Planned Parenthood, 505 U.S. at 833.

  86. Id.

  87. Id. at 846.

  88. Id.

  89. Id. at 870 (citing Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 759 (1986); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 419-20 (1983)).

  90. Id.

  91. Planned Parenthood, 505 U.S. at 870.

  92. Id. at 870-71.

  93. Id. The Court refused to state whether its particular composition of Justices would have concluded that the state interest is not great enough to allow bans prior to viability had they confronted the question as an “original matter,” emphasizing the Court’s respect for precedent, see id.

  94. See, e.g., Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016) (admitting privileges and ambulatory surgical center requirements); June Med. Services v. Russo, 140 S. Ct. 2103, 207 L. Ed. 2d 566 (2020) (admitting privileges) While Gonzales v. Carhart, 550 U.S. 124 (2007), dealt with the ban of a particular late-term abortion procedure, it did not ban all abortion procedures that can be used for abortions from the second trimester on.

  95. State Bans on Abortion Throughout Pregnancy, supra note 4.

  96. Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021).

  97. Miss. Code. Ann. § 41-41-191(4)(a) (2018).

  98. § 41-41-191(2).

  99. § 41-41-191(2). The Baby Centre, which describes fetal development week by week notes that the fetus is “starting to look more human every day,” id. Chess Thomas, 12 Weeks Pregnant: Fetal Development, The Baby Ctr. (Oct. 2019), https://www.babycentre.co.uk/12-weeks-pregnant.

  100. § 41-41-191(2)(b)(i)(6).

  101. Susan J. Lee et al., Fetal Pain: A Systematic Multidisciplinary Review of the Evidence, 294 JAMA 947 (2007).

  102. Miss. Code Ann. § 41-41-191(2)(b)(i) (2018) (quoting L. Bartlett et al., Risk Factors for Legal Induced Abortion Mortality in the United States, 103(4) Obstetrics & Gynecology 729 (2004)). In quoting from this study, the statute and petitioners did not note that the study also found that abortion has only become safer throughout pregnancy in the years since Roe was decided, id. Miss. Code Ann. § 41-41-191(2)(b)ii; Pet. for Cert. 8; see Resp’t Br. 7 (quoting the finding in L. Bartlett et al., Risk Factors for Legal Induced Abortion Mortality in the United States, 103 Obstetrics & Gynecology 729, 733-34, 736 (2004) that “abortion-related deaths are exceedingly rare, and that abortion has become safer at all stages of pregnancy since Roe and Casey.”).

  103. § 41-41-191(2)(b)iii.

  104. See L. Bartlett et al., Risk Factors for Legal Induced Abortion Mortality in the United States, 103(4) Obstetrics & Gynecology 729 (2004).

  105. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2315 (2016) (stating that childbirth is 14 times more likely to result in death than abortion); see generally Br. for Whole Woman’s Health, et al. as Amici Curiae Supporting Pet’rs, Whole Woman’s Health v. Cole (No. 15-274) 2016 WL 74984; see Resp’ts Br. 28, Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (No. 15-274). The risks of death through childbirth are even greater for pregnant people in Mississippi, id.

  106. Caitlin Gerdts et al., Side Effects, Physical Health Consequences, and Mortality Associated with Abortion and Birth after an Unwanted Pregnancy, 26 Women’s Health Issues 55, 57 (2016). The study examined the health consequences of women from the Turnaway study, finding that “a greater percentage of women in the turnaway group [women who were denied abortions] (6.3% . . . ) who gave birth reported potentially life-threatening conditions, compared with 1.1% of women . . . in the near limit group,” id. The facilities where the women sought abortions included those with gestational age limits between 10 and 13 weeks; between 14 and 20 weeks; or, in the majority of clinics, more than 20 weeks, id. See also Rita Rubin, Among Women Seeking Abortion, Continuing Pregnancy Linked to Worse Physical Health, JAMA Network, Aug. 7, 2019, https://jamanetwork.com/journals/jama/article-abstract/2748019.

  107. S. Singh et al, Abortion Worldwide 2017: Uneven Progress and Unequal Access, Guttmacher Inst. (2018), https://www.guttmacher.org/report/abortion-worldwide-2017. Those seven countries are the United States, Canada, China, the Netherlands, North Korea, Singapore, and Vietnam, id.

  108. Miss. Code Ann. § 41-41-191(2)(a) (2018).

  109. Daniela Santamariña et al., How Abortion Laws in the U.S. Compare with Those in Other Countries, Wash. Post (Dec. 2, 2021), https://www.washingtonpost.com/world/interactive/2021/us-abortion-laws-worldwide/ (explaining that many countries with earlier official limits “offer broad exceptions after the first three months for socioeconomic reasons such as unemployment, medical issues like fetal impairment or social issues like the age of the mother.”).

  110. Id.

  111. See Joerg Dreweke, New Clarity for the U.S. Abortion Debate: A Steep Drop in Unintended Pregnancy Is Driving Recent Abortion Declines, Guttmacher Inst. (Mar. 18, 2016), https://www.guttmacher.org/gpr/2016/03/new-clarity-us-abortion-debate-steep-drop-unintended-pregnancy-driving-recent-abortion#.

  112. Brief of Respondent at 35; Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (No. 15-274) (“Contraception is not universally accessible or affordable in the United States, particularly for young people and people who are poor or living with low incomes.”); see also Brief for Whole Woman’s Health, et al. as Amici Curiae Supporting Petitioners, Whole Woman’s Health v. Cole (No. 15-274) 2016 WL 74952.

  113. David McHugh, Pandemic Shows Contrasts Between US, European Safety Nets, PBS Newshour (May 10, 2020), https://www.pbs.org/newshour/world/pandemic-shows-contrasts-between-us-european-safety-nets (“The U.S. tends to rank below average on measures of social support among the 37 countries of the Organization for Economic Development and Cooperation, whose members are mostly developed democracies. The U.S. came last in people living in relative poverty, meaning living on half the median income or less, with 17.8%. Countries like Iceland, Denmark, the Czech Republic and Finland have less than 6%.”).

  114. Brief for Jackson Women’s Health Organization et al., as Amici Curiae Supporting Respondents, Dobbs v. Jackson Women’s Health Org., 141 S.Ct. 2619 (2021) (No. 19-1292). Mississippi, like 13 other states with extensive abortion restrictions, invests the least in the health and well-being of women and children, id.

  115. Petition for Writ of Cert. 5, Dobbs v. Jackson Women’s Health Org., 945 F.3d 265 (2019) (No. 19-1392).

  116. Brief for Petitioner at 19-36, Dobbs v. Jackson Women’s Health Org., 141 S.Ct. 2619 (2021) (No. 19-1392) (challenging the Court’s abortion precedents and arguing that they “are hopelessly unworkable” and “have inflicted severe damage.”) (also claiming that progress with respect to women’s abilities to “pursue both career success and a rich family life” as well as “dramatic expansions in access to contraceptives” have “eroded” the “underpinnings” of the abortion precedent). Based on these dubious assertions, it concludes there is no reasonable reliance on Roe and its progeny, id.

  117. Id. at 39, 42.

  118. Id. at 39-40.

  119. Id. at 41.

  120. Petition for Cert., supra note 115, at 21; see also Brief of Petitioners, supra note 116, at 8. Although notably, it did not cite to the erroneous findings that the risk of later term abortions is greater than the risk of childbirth, id.

  121. Brief of Petitioners, supra note 116, at 42 (quoting MKH Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 774 (8th Cir. 2015)).

  122. Id.

  123. Petition for Certiorari, supra note 115, at 10-11, 24-25.

  124. Lee et al., supra note 101, at 947.

  125. Id.

  126. Id.

  127. Cavaliere, supra note 8, at 3-4.

  128. Id. at 3.

  129. Charo, supra note 27, at 11.

  130. Id.

  131. Id. at 12.

  132. Id. at 12-13. Charo also argues that the Panel should have "gone further, and struggled to develop “its overarching ethical principles into a principled approach to political compromise—one that described a political ideal of compromise rather than a merely pragmatic compromise,” id. Under her theory, the recommendations would have been less controversial had they been “supported by arguments focusing on the interests of research opponents and proponents rather than conclusions concerning the moral status of the embryo,” id. Whether her recommended political ethics approach is ideal in these contexts is beyond the scope of this piece.

  133. Cavaliere, supra note 8, at 3. This is consistent with a 2005 survey on American attitudes regarding embryo stem cell research, id. A majority of respondents (67%) in the survey approve or strongly approve of embryonic stem cell research, id. Kathy L. Hudson et al., Values in Conflict: Public Attitudes on Embryonic Stem Cell Research, Genetics & Pub. Pol’y Ctr. 8 (2005), https://www.pewtrusts.org/-/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/genetics_and_public_policy/gppcstemcellsurvey1005pdf.pdf.

  134. See Roe, 410 U.S. at 159; Planned Parenthood, 505 U.S. at 850.

  135. Roe, 410 U.S. at 116.

  136. See supra notes 77-84 and accompanying text.

  137. Planned Parenthood, 505 U.S. at 833, 871.

  138. Public Opinion on Abortion: Views on Abortion, 1995-2021, Pew Res. Ctr. (May 6, 2021), https://www.pewforum.org/fact-sheet/public-opinion-on-abortion/ (“While public support for legal abortion has fluctuated some in two decades of polling, it has remained relatively stable over the past five years,” with a majority since 1995 in favor of legalizing it in all or most cases, except for in 2009 when a plurality (49%) supported legalization in all or most cases.).

  139. See Tom W. Smith & Jaesok Son, Trends in Public Attitudes Toward Abortion 1 (2013), https://www.norc.org/PDFs/GSS Reports/Trends in Attitudes About Abortion_Final.pdf (“Abortion has long been a divisive and polarizing issue between pro-choice and pro-life advocates. But among the American public, most people hold moderate positions and are not at the ideological extremes. . . . [Survey questions] asked from 1977 through 2012 altogether show that on average 7.2% were absolutely pro-life, rejecting legal abortions for all reasons, and 31.0% were totally pro-choice endorsing legal abortions for all reasons. That left the majority of 61.8% in the middle, favoring legal abortions for some reasons and opposing it for others.”).

  140. Hyun et al., supra note 61.

  141. For example, Lawrence Tribe sees viability as marking “the critical division between extraction of the fetus from a woman’s body and termination of its life, between abortion and what is essentially infanticide.” Radhika Rao, The Author of Roe, 26 Hastings Const. L. Quarterly 21, 31, 34 (1998) (citing Laurence H. Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 27-28 (1973)). Nancy Rhoden points out that “[b]efore viability, removing an unwanted fetus from the womb necessarily entails destruction,” whereas “[a]fter viability, . . . these dual functions of removal and destruction diverge.” Nancy K. Rhoden, Trimesters and Technology, 95 Yale L.J. 639, 666 (1986). Jed Rubenfeld suggests that “‘the concept of viability holds a strong normative pull’ because it marks the earliest moment at which a fetus may be deemed a constitutional person.” Jed Rubenfeld, On the Legal Status of the Proposition that "Life Begins at Conception," 43 Stan. L Rev. 599, 621 (1991). Patricia King notes the importance of viability because the “‘law traditionally considered the acquisition of a capacity for independent existence to be the significant point in human development.’” Patricia A. King, The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn, 77 Mich. L. Rev. 1647, 1676 (1979).

  142. Id. at 32-33.

  143. Id. at 33 (quoting Rubenfeld, supra note 141, at 622-23).

  144. Leslie Reagan, When Abortion Was a Crime 8 (1st ed. 1997).

  145. Rao, supra note 141, at 33.

  146. See Emily A. Partridge et al., A Unique Womb-Like Device Could Reduce Mortality and Disability for Extremely Premature Babies, Child. Hosp. Phila. (Apr. 25, 2017), https://www.chop.edu/news/unique-womb-device-could-reduce-mortality-and-disability-extremely-premature-babies (describing the creation of an artificial womb in which fetal lambs were placed at about 110 days old, similar to a 23- or 24-week-old human fetus, and gestated with evidence of “normal growth, neurological function and organ maturation”); Antonio Regalado, A Mouse Embryo Has Been Grown in an Artificial Womb—Humans Could Be Next, MIT Tech. Rev. (Mar. 17, 2021), https://www.technologyreview.com/2021/03/17/1020969/mouse-embryo-grown-in-a-jar-humans-next/ (describing researchers’ ability to grow mouse embryos in a glass jar for up to 12 days, which is half of their natural gestation, and the equivalent of a first trimester human embryo).

  147. Cf. Josephine Johnston, Françoise Baylis & Henry T. Greely, ISSCR: Grave Omission of Age Limit for Embryo Research, 594 Nature 495 (June 24, 2021).

  148. Petition for Certiorari, supra note 115, at 24-25.

  149. See Lee supra notes 124-126 and accompanying text.

  150. Brief of Petitioners, supra note 116, at 12-35.

  151. Miss. Code Ann. § 41-41-34.1(2)(a) (2018).

  152. See Gonzales v. Carhart, 550 U.S. 124 (2007) (deferring to legislative findings where there was a division of opinion among experts).

  153. Transcript of Oral Argument at 53-54, Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (No. 19-1392), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf.

  154. Id. at 77.

  155. Id. at 56-57, 109.

  156. Id. at 49, 51, 103.

  157. Id. at 92-93.

  158. Id. at 60.

  159. Josh Gerstein et al., Supreme Court Has Voted To Overturn Abortion Rights, Draft Opinion Shows, Politico, May 2, 2022, https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 (including the full “1st Draft” of the “Opinion of the Court,” written by Justice Alito and circulated Feb. 10, 2022, and indicating that Justices Barrett, Gorsuch, Kavanaugh, and Thomas joined the opinion) (Opinion at 49, 6, 5).

  160. Tex. Health & Safety Code Ann. § 171.201 (West 2021).

  161. Kate Zernike & Adam Liptak, Texas Supreme Court Shuts Down Final Challenge to Abortion Law, N.Y. Times (Mar. 11, 2022), https://www.nytimes.com/2022/03/11/us/texas-abortion-law.html. A United States District Court judge temporarily enjoined the statute on October 6, 2021, id. But just two days later, the appellate court allowed the law to go back into effect, id. The Supreme Court granted certiorari in the two cases brought by the United States government and the abortion providers, id. It did not allow the case brought by the United States government to proceed, id. Although it permitted the case brought by the providers against Texas medical licensing officials to go forward, it did not allow the claim to proceed against the judges, law clerks, and attorney general, id. The Supreme Court did not, however, enjoin the statute, allowing the chilling effect of the law to prohibit all but the earliest of abortions in Texas, id. On March 11, 2022, the Supreme Court of Texas ended the federal litigation by concluding that the claim could not be brought against the medical licensing officials because they have no authority to enforce the law, id. See United States v. Texas, Case 1:21-cv-00796-RP, Oct. 6, 2021; United States v. Texas, WL 4786458 (2021); Whole Woman’s Health v. Jackson, 142 S.Ct. 522 (2021); J. David Goodman, Most Abortions in Texas Are Banned Again After Court Ruling, N.Y. Times (Oct. 8, 2021), https://www.nytimes.com/2021/10/08/us/texas-abortion-ban.html.

  162. How Early Can You Hear Baby’s Heartbeat on Ultrasound and By Ear?, Healthline (Sept. 26, 2018), https://www.healthline.com/health/pregnancy/when-can-you-hear-babys-heartbeat#takeaway.

  163. Dani Kurtz, How Are Due Dates Calculated?, Intermountain Healthcare (Dec. 3, 2015), https://intermountainhealthcare.org/blogs/topics/intermountain-moms/2015/12/how-are-due-dates-calculated.

  164. Id.

  165. Id.

  166. Powell, supra note 8, at 23 (On the fifth day after fertilization, the embryo implants in the uterus).

  167. Kate Marple, Fetal Development Week by Week, Baby Ctr. (Dec. 1, 2021), https://www.babycenter.com/pregnancy/your-baby/fetal-development-week-by-week_10406730; When Does a Fetus Have a Heartbeat?, MedicalNewsToday (June 9, 2020), https://www.medicalnewstoday.com/articles/when-does-a-fetus-have-a-heartbeat#timeline.

  168. See supra notes 53-62 and accompanying text.

  169. Embryonic and Fetal Research Laws, Nat’l Conf. State Legislatures, https://www.ncsl.org/research/health/embryonic-and-fetal-research-laws.aspx. Many states restrict research on aborted fetuses or embryos, although such research in many states is permitted with patient consent, id. “Louisiana specifically prohibits research on in vitro fertilized (IVF) embryos. Illinois and Michigan also prohibit research on live embryos,” id.

  170. See Radhika Rao, Constitutional Misconceptions, 93 Mich. L. Rev. 1473, 1475 (1995); Sonia M. Suter, The “Repugnance” Lens of Gonzales v. Carhart and Other Theories of Reproductive Rights, 76 Geo. Wash. L. Rev. 1514, 1525 (2008).

  171. See David Hamlin, The Nazi/Skokie Conflict: A Civil Liberties Battle 57 (1980). The term was coined by Professor Harry Kalven, id.

  172. Balanced Budget Down Payment Act, I, Pub. L. No. 104-99, 128, 110 Stat. 26, 34 (1996). This restriction is referred to as the Dickey-Wicker amendment because of its two co-sponsors Rep. Jay Dickey (R-Ohio) and Sen. Roger Wicker (R – Mississippi), id. The amendment was a provision attached to the appropriations bill funding the Department of Health and Human Services, id. Judith Daar, I. Glenn Cohen, Seema Mohapatra, & Sonia M. Suter, Reprod. Techs. & L. 833 (3d ed. 2021). Since then, the Dickey Amendment has been renewed in each annual appropriation bill authorizing funding for the National Institutes of Health, which funds medical and scientific research in the United States, id. Nidhi Subbaraman, Research on Embryo-Like Structures Struggles to Win US Government Funding, Nature (Jan. 17, 2020), https://www.nature.com/articles/d41586-020-00127-z.

  173. Gerstein et al., supra note 159 (Opinion at 6).

  174. Id. (Opinion at 5).

  175. If Roe v. Wade Is Overturned: New Interactive Map Shows How Far People Seeking Abortion in the 26 States Certain or Likely to Ban the Procedure Will Need to Travel to Get the Care They Need, Guttmacher Inst. (Oct. 28, 2021), https://www.guttmacher.org/news-release/2021/if-roe-v-wade-overturned-new-interactive-map-shows-how-far-people-seeking-abortion.

  176. Public Opinion on Abortion: Views on Abortion, 1995-2021, Pew Res. Ctr., https://www.pewforum.org/fact-sheet/public-opinion-on-abortion/. As of May 2021, “59% say abortion should be legal in all or most cases, while 39% say it should be illegal in all or most cases,” id

  177. In Alabama, Arkansas, Indiana, Kentucky, Louisiana, Mississippi, North Dakota, South Carolina, Tennessee, Utah, and West Virginia, more than 50% of the population holds this view. Views About Abortion by State, Pew Res. Ctr., https://www.pewforum.org/religious-landscape-study/compare/views-about-abortion/by/state/ (last visited Apr. 2022). Even in Texas, a plurality of 50 percent believes that abortion should be illegal in all or most cases, whereas 45% believe it should be legal in all or most cases, id.

  178. Lawrence v. Texas, 539 U.S. 558, 571, 578 (2003).

  179. Gerstein et al., supra note 159, at 33-34.

  180. Woman Dies After Abortion Request ‘Refused’ at Galway Hospital, BBC News (Nov. 14, 2012), https://www.bbc.com/news/uk-northern-ireland-20321741.

  181. Gerstein et al., supra note 159.

  182. No Abortions, No Exceptions? Legislators in Some States Are Pushing for 100% Bans, Greenwood Commonwealth, May 7, 2022, https://www.gwcommonwealth.com/national-top-stories/no-abortions-no-exceptions-legislators-some-states-are-pushing-100-bans#sthash.pETK5RGh.dpbs; Christine Vestal, After Leaked Roe Ruling, GOP Weighs Stricter Abortion Bans, Pew, May 17, 2022, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/05/17/after-leaked-roe-ruling-gop-weighs-stricter-abortion-bans.

  183. America’s Abortion Quandary, Pew Res. Ctr. (May 6, 2022), https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/. A recent Gallup poll found that “Americans’ opinions of the United States Supreme Court have worsened, with 40%, down from 49% in July, saying they approve of the job the high court is doing, id. This represents, by two percentage points, a new low in Gallup’s trend, which dates back to 2000,” id.

  184. Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low, Gallup (Sept. 23, 2021), https://news.gallup.com/poll/354908/approval-supreme-court-down-new-low.aspx?version=print.

  185. Id. (“[A] new high of 37%, up from 32% a year ago, consider the current Supreme Court ‘too conservative.’”). Interestingly, the decline in job approval ratings has declined across all three party groups – Republicans, Democrats, and Independents, id.

  186. See infra notes 183-184 and accompanying text.

  187. See, e.g., Planned Parenthood, 505 U.S. at 854-861 (noting that the “obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit,” and offering “prudential and pragmatic considerations” as to when overruling precedent is appropriate). In many ways, my argument here is not unlike the presumption in favor of adhering to precedent. The Supreme Court has a long line of jurisprudence suggesting the importance of following precedent but also offering guidelines and limits as to when precedent should be overturned, id.

  188. Christine Grimaldi, Republicans Push Deeply Unpopular ‘Personhood’ Bill in Congress, Rewire News Group (Jan. 23, 2017), https://rewirenewsgroup.com/article/2017/01/23/republicans-push-deeply-unpopular-personhood-bill-congress/. For this reason, personhood bills have not been successful, even in conservative states like Mississippi, id.

  189. Cf. Dov Fox, Interest Creep, 82 Geo. Wash. U. L. Rev. 273 (2014) (describing the different nature of interests regarding embryos).

  190. See Radhika Rao, Property, Privacy and Other Legal Constructions of Human Embryos, in The ‘Healthy’ Embryo: Social, Biomedical, Legal & Philosophical Perspectives 32 (Jeff Nisker et al., Cambridge Univ. Press 2009) (discussing the importance of context in understanding the legal and moral status of the embryo).

  191. See Naomi Cahn & Sonia M. Suter, The Art of Regulating ART, 96 Chi.-Kent L. Rev. 29, 45-58 (2022) (for a discussion of the regulation of genomic modification in the United States).

  192. Id.

  193. Recombinant DNA Research, 50 Fed. Reg. 33,462, 33,464 (Aug. 13, 1985). As early as 1985, the FDA stated that it would not approve any protocols for germline therapy and that the Recombinant DNA Advisory Committee would “not entertain” such proposals, id.

  194. Mark Shwartz, Target, Delete, Repair: CRISPR Is a Revolutionary Gene-Editing Tool, But It’s Not Without Risk, Stanford Med. (2018), https://stanmed.stanford.edu/2018winter/CRISPR-for-gene-editing-is-revolutionary-but-it-comes-with-risks.html#.

  195. See Francis S. Collins, Statement on NIH Funding of Research Using Gene-Editing Technologies in Human Embryos, Nat’l Inst. Health (Apr. 28, 2015), https://www.nih.gov/about-nih/who-we-are/nih-director/statements/statement-nih-funding-research-using-gene-editing-technologies-human-embryos [https://perma.cc/D95G-KVVM].

  196. Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 749, 129 Stat. 2242, 2283 (2015).

  197. Ian Sample, Chinese Scientist Who Edited Babies’ Genes Jailed for Three Years, The Guardian (Dec. 30, 2019), https://www.theguardian.com/world/2019/dec/30/gene-editing-chinese-scientist-he-jiankui-jailed-three-years.

  198. Nat’l Acad.'s of Sci.'s, Engineering, and Med., Human Genome Editing: Sci., Ethics, And Governance 7-8 (2017). For example, the National Academies of Sciences, Engineering, and Medicine issued a report stating that “clinical trials using heritable genome editing should be permitted only if” there are no reasonable alternatives, the gene editing is limited to “preventing a serious disease or condition,” the edited genes “have been convincingly demonstrated to cause or to strongly predispose to the disease or condition,” and “credible preclinical and/or clinical data on risks and potential health benefits of the procedures” are available, id. See also Nat’l Acads. Scis., Eng’g, & Med., Human Genome Editing: Sci., Ethics, & Governance 7-8 (2017); see also Nat’l Acad. Med., Nat’l Acad. Scis., & Royal Soc’y, Heritable Human Genome Editing 2-5 (2020) (recommending that the clinical uses of germline gene editing be limited “to serious monogenic diseases” that cause “severe morbidity or premature death”).

  199. See Daar et al., supra note 172, at 1011-16 for a summary of the suggested change in line drawing.

  200. See, e.g., Nat’l Acad.'s of Sci.'s, Engineering, and Med., supra note 198, at 178 (“Public participation should be incorporated into the policy-making process for human genome editing and should include ongoing monitoring of public attitudes, informational deficits, and emerging concerns about issues surrounding ‘enhancement.’”). Nearly all discussions regarding the regulation of germline gene editing call for public engagement, id. Nat’l Acad. of Med., Nat’l Acad. of Sci.'s, and the Royal Soc’y, supra note 198, at 93 (“Extensive societal dialogue should be undertaken before a country makes a decision on whether to permit clinical use of heritable human genome editing. . . .”).

  201. See supra notes 53-62 and accompanying text.