As a show of the growing strength of anti-abortion forces in Congress and indicating a total disregard of women’s reproductive health and rights, Republican House leaders have scheduled a vote on a 20-week abortion ban bill for Thursday, the 42nd anniversary of the Roe v. Wade decision. The bill, misleadingly entitled “Pain-Capable Unborn Child Protection Act,” (H.R. 36), is sponsored by Reps. Trent Franks (R-AZ) and Marsha Blackburn (R-TN) with 158 co-sponsors, and would prohibit abortions after the 20th week of gestation, arguing that fetuses feel pain at that point – an assertion that is not supported by scientific research findings, according to American College of Obstetricians and Gynecologists.
A ban on abortion care at 20 weeks and after, according to NOW Action Vice President Bonnie Grabenhofer, is “mean-spirited, deceptive and – most importantly — unconstitutional. It reveals the arrogance of legislators who oppose abortion rights and believe that they can practice medicine.“
Ban Increases Risks to Women and their Doctors
H.R. 36 is also irresponsible and dangerous – destined to risk women’s health and lives, while criminalizing a safe medical procedure. Provisions in H.R. 36 require doctors to make a life or death determination in some instances and, possibly, to face imprisonment for up to five years if anyone successfully challenges their decision in court.
An identical bill was passed by the GOP-controlled House in 2013 on a near party-line vote, 222 to 196. Given the increased Republican majority in the House (now 246 to 188, one vacancy), H.R. 36 will be approved, but it will have to overcome a 60-vote filibuster barrier in the Senate. Nonetheless, Senate Majority Leader Mitch McConnell (R-Ky.) has said he will bring a 20-week ban bill to a floor vote.
On Tuesday, the administration issued a statement in opposition to H.R. 36, stating “Not only is the basis for H.R. 36 scientifically disputed, the bill disregards women’s health and rights, the role doctors play in their patients’ health care decisions, and the Constitution.” Calling the bill “a direct challenge to the Supreme Court’s holdings on abortion,” the statement indicated that senior advisors would recommend that he veto the measure.
Abortions after the 20th week of pregnancy are rare, accounting for only about 1.5 percent of the total number of abortions performed annually.
The 20-week ban is clearly unconstitutional as it prohibits abortion before fetal viability – the point in gestational time when both Roe v. Wade and Planned Parenthood v. Casey say that women have a right to end a pregnancy and beyond that point may terminate a pregnancy for preserving the women’s health and life. The 20-week ban is a cruel example of the extent to which opponents of women’s reproductive rights are willing to use their political power to undermine safe and legal medical practice, risk women’s health and lives, impose significant burdens on families as well as on health care providers and cause immeasurable suffering.
H.R. 36 requires physicians to determine the “probable” post-fertilization age of the fetus by performing a medical examination of the woman or relying on the determination made by another physician. Provisions in the legislation state that if an abortion is performed post 20 weeks, a physician is required to conduct the procedure in a manner intended to preserve the life of the fetus “unless that manner would pose a greater risk than other methods would pose for the death or substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”
Exceptions to Ban are Inadequate
Especially impacted by the ban are pregnant women who are diagnosed with a serious health problem or a life-threatening condition which, under Roe, would override any prohibition on abortion. The bill’s definition of a serious health condition is inadequate from a sound medical practice perspective. (There isn’t one. The definition of what constitutes a threat to life is prescribed in such extreme terms that the woman would need to be very close to death. At the same time, physicians would be placed in a very difficult position in determining whether to deliver a live fetus (this is given priority in the bill) or to preserve the woman’s health or life.
This means that in dire situations that would likely qualify for an exception to the ban, health care providers could only provide life-saving care after establishing that the woman would die or suffer life-threatening injuries if the pregnancy termination was not immediately undertaken. A very real possibility would be that the decision to take action would come too late and the woman would die or suffer a major impairment to her health.
No health conditions (including mental illness) are allowed for exclusion to the ban in direct violation of Roe. Every woman’s situation in needing an abortion is different and the absence under H.R. 36 of consideration for a serious health condition or for a mental illness is callous and irresponsible.
Equally harmed will be women who learn that they are carrying a fetus with a severe defect which would doom its’ chances of surviving after birth or would result in living with severe physical or mental limitations. Many fetal abnormalities are not diagnosed until after the 20th week. Thus women who have a fetus with a condition of anencephaly (absence of a brain), for instance, would be required to carry the pregnancy to term and to care for a severely disabled infant until it dies.
In addition, H.R. 36 will force women who have become pregnant due to rape or incest to carry their pregnancies to full term — if they have not reported the incident to authorities. The U.S. Department of Justice, Bureau of Justice Statistics, found in a review of data from 1994 to 2010 that only 35 percent of victims report the rape to the police. Frequently, survivors of sexual assault feel shame and do not wish to come forward, while others do not report because they believe that the justice system will not help them. Incest victims who are mostly very young women often fear retribution from the perpetrators for reporting the crime; although H.R 36 does exempt minors. But again, the exception is inadequate.
No Credible Evidence of Fetal Pain at that Stage
The supposed rationale for a 20-week ban rests on abortion rights opponents’ assertion that fetuses feel pain. Yet, fetuses do not have the neurological development that is necessary to register a response and to potentially recognize an experience as pain until at least 24 weeks and most likely much later. Abortions after 20 weeks are rare; 98.5 percent of abortions occur before 21 weeks, according to the Guttmacher Institute, who also reports that the number of induced abortions continues to decline, with 1.6 million performed in 2011 and down 13 percent from 2008. At least half of all U.S. women will experience an unintended pregnancy by age 45 and three in ten women by age 45 will have had an abortion, Guttmacher reports.
Dr. Mark Rosen, a pioneer in fetal anesthesia, who conducted a review of numerous studies, concluded that fetal pain perception was not likely before the third trimester, beginning at 27 weeks. Dr. Rosen wrote that pain sensation required neural connections into the cortex – which begins to emerge in about the 23rd week and is not functionally developed until the 26th week or later and then continues developing after birth. Dr. Rosen’s analysis appears in a 2005 issue of the Journal of the American Medical Association.
A review panel of Britain’s Royal College of Obstetricians and Gynecologists in 2010 concluded that the fetus cannot experience pain in any sense prior to 24 weeks, noting that most neuroscientists believe that the cortex is necessary for pain perception. The American College of Obstetricians and Gynecologists in 2012 agreed and commented that studies cited by fetal-pain law supporters were not persuasive “when weighed together with other available information,” according to a Sept. 16, 2013 article in the New York Times.
The stage of development when a fetus can survive outside the uterus without artificial aid can be determined sometime between 23 and 27 weeks. Most physicians define age of viability at 24 weeks; fetuses delivered at 21 weeks or less have a 0 percent chance of surviving while most do not survive until 25 – 26 weeks. But they then require skilled care, months of hospitalization and result in significant financial costs to families, hospitals and insurers. In addition, premature infants often have life-long developmental deficits and other health challenges.
Roe set a dividing line for viability at 28 weeks or seven months which was – and still is — recognized as a gestational development stage which offers a 90 percent chance of survival for fetuses. As technology advanced and fetal survival chances improved at earlier gestational points, the decision in Planned Parenthood v. Casey (1992) modified the Roe dividing line by permitting states to draw that line earlier depending upon technological developments. Since then abortion rights opponents have been pushing for abortion bans in the states far earlier than the 28 week line, one even at six weeks – prior to the time when many women do not realize they are pregnant!
Misleading through Biased Polling
Engaging in the same sort of dissembling that they have proven so adept at, Republican leaders say that they have a “winner” in the 20-week abortion ban issue, and point to a poll (Quinnipiac University, 2013) which found 60 percent of respondents in support of the ban. Of course, most people – and certainly the Quinnipiac poll subjects – are not aware of when fetal viability usually occurs, nor do they understand the consequences of banning abortions before viability.
Respondents in another national poll of more than 1,000 registered voters and conducted by Planned Parenthood in 2014 found that 60 percent support access to abortion at 20 weeks, with 33 percent opposed. Unlike the abortion rights opponents’ advocacy poll by Quinnipiac, respondents in this poll were asked about the specific circumstances in which women should and should not be permitted to terminate a pregnancy after the 20th week. Once respondents learned of the possible complications in pregnancy that could arise after the 20th week, an overwhelmingly majority opposed the ban.
Abortion Rights Opponents Want to Ban Abortion Before Viability
Abortion rights opponents are becoming ever more extreme in their rhetoric, promoting fallacious theories and relying on inflammatory lies to build support for restrictive legislation. The 20-week ban is one more calculated step to both limit access and to ultimately present the conservative, anti-abortion rights majority on the U.S. Supreme Court with a case they could possibly win. Their chosen path is to challenge the rule that states do not have the power to ban abortion prior to fetal viability.
As always, women and their families will suffer.