This week, the Senate takes up an unconstitutional bill recently passed 237-189 in the House that would ban all abortion after 20 weeks. The deceptively named “Pain-Capable Unborn Child Protection Act” (H.R. 36) would “make it a crime for any person to perform or attempt to perform an abortion if the probable post-fertilization age of the fetus is 20 weeks or more.”
The claim that a fetus can feel pain at 20 weeks has been thoroughly debunked. Published at the Journal of Maternal-Fetal & Neonatal Medicine, a 2011 review of more than 150 studies has confirmed that a fetus’s neurological system is not developed enough at 20 weeks to register pain; the connection between the brain and the rest of the body simply doesn’t exist.
According to the Mayo Clinic, the lungs don’t develop until 26 weeks, making any delivery before then of the highest risk. A 2015 study published in the New England Journal of Medicine followed babies delivered before 27 weeks from birth through their toddler years and found that only 18 of the 78 “22-weekers” had survived, only seven were without moderate or severe impairments, and these were preemies with access to exceptional neonatal intensive care unit (NICU) care.
The evidence is not new, and yet abortion opponents continue to draw a line in the sand at this arbitrary point during pregnancy. Its arbitrariness makes this bill and those like it unconstitutional as well. As Roe v. Wade and subsequent Supreme Court decisions have determined over the past 44 years, states have a vested interest in “potential life,” but may not prohibit the termination of a pregnancy before the fetus can survive on its own — albeit with great assistance from modern medicine. Abortion opponents in Congress seem undeterred by constitutional precedent or the bounds of medical technology.
In addition to being an infringement on people’s rights, this legislation could be costly to taxpayers.
Currently, 18 states unconstitutionally prohibit later abortion with exceptions for when the life or physical health of the pregnant person is in severe danger. These laws take time and money to fight, though ultimately it is the state whose finances are drained. Arizona, for example, recently lost the fight defending its 20-week ban. An extensive report from the Arizona Capitol Times found that the state has paid out $2.2 million in legal fees in the past eight years to the groups that have successfully fought to overturn several abortion restrictions. When the costs to the attorney general’s office are included, Arizona has spent an estimated $2.3 million on laws that were indefensible on their face. The federal government would have similar responsibilities should it pass H.R. 36 and lose the battle with the courts to keep it on the books. In addition to being an infringement on people’s rights, this legislation could be costly to taxpayers.
Bans Impact Young People, Rural People, Poor People
There are myriad reasons why pregnancies are terminated at 20 weeks and after. Lives and circumstances change, transforming a wanted pregnancy to one the pregnant person cannot continue. Rural residents must first find a clinic and often navigate additional state-imposed restrictions like waiting periods and bans on insurance coverage. Low-income people in all parts of the country may find that just as they’ve managed to raise enough money, they have moved far enough along in their pregnancy to need a more expensive procedure and must race to raise additional funds. Immigrants and communities of color are disproportionately impacted because of systemic oppression and barriers.
Youth in particular often don’t realize they’re pregnant in the first several weeks, then must gather information and support — not to mention money. Parental notification laws in 37 states complicate the path to an appointment at a clinic; judicial bypass laws designed to allow minors to circumvent their guardians can be a terrifying burden to navigate as the pregnant teen watches the weeks go by.
Dené Dryden, a student at Kansas State University and a journalism intern for the youth-driven reproductive justice leadership organization Unite for Reproductive and Gender Equity, told Truthout about the 20-week ban already in place in her state.
“Anti-abortion policies disadvantage every person seeking care, but [they are] especially hindering for people who live far away from abortion clinics,” said Dryden. “Young people living in rural areas already face added barriers to abortion: it’s harder for us raise the funds and we have to figure out transportation.”
Kansas also requires additional counseling beyond what is medically necessary and typically provided by physicians.
“In Kansas, we have to make two trips to the abortion clinic,” said Dryden. “All of these restrictions can push a young person later in pregnancy, which means they might not be able to get an abortion because of the 20-week ban.”
Plus, the 20-week point is the time at which many in utero tests can be performed. Complications with the fetus and/or pregnant person can make an appearance and tests can show anomalies that are incompatible with life. Decisions about whether to continue carrying a fetus that will most certainly die or live a short, painful life often occur at 20 weeks.
Dr. Julie Bindeman, a psychologist and co-director and cofounder of Integrative Therapy of Greater Washington, told Truthout about her experiences with facing this decision — twice.
“In a moment when so many urgent national priorities demand our attention, Congress is choosing to maintain their focus on restricting abortion access. It’s unconscionable, and once again, I am sharing my story,” said Bindeman. “As a woman who ended two pregnancies after 20 weeks, I am deeply concerned about the prospect that our anti-abortion government will pass a national ban on the very care I needed. I can only imagine how much more painful it would have been for all of us if this personal, important decision was taken away from us because we didn’t find out until after an arbitrary cutoff. Or if we found out just before the cutoff, and were prohibited from making a decision on our own time.”
Bindeman isn’t only worried about herself and her family.
“As a reproductive psychologist, I am likewise concerned about the impact of stigma and restrictive laws on women’s mental well-being,” she said. “Bans on abortion later in pregnancy interfere with personal medical decisions; these bans also disrupt and threaten a woman’s ability to process the experience of pregnancy loss.”
Sung Yeon Choimorrow, executive director of the National Asian Pacific American Women’s Forum, echoed Bindeman’s and Dryden’s anger about the legislators’ focus on abortion restrictions.
“Banning safe and medically proven abortion care harms Asian-American and Pacific Islander (AAPI) women by taking away our decisions about our bodies, our pregnancies and our families,” Choimorrow told Truthout. “The 20-week abortion ban is just another attempt at advancing this administration’s anti-women agenda. It criminalizes women’s bodily autonomy, as well as the doctors who provide women with the care they need.”
Choimorrow explained that the AAPI community already faces challenges that would be amplified by a federal 20-week ban.
“Abortion restrictions are uniquely harmful to the Asian American Pacific Islander (AAPI) community, many of whom are immigrants and who face financial and linguistic barriers to culturally competent reproductive health care,” said Choimorrow. “We are also subject to racist and sexist stereotypes about our reproductive decision-making. Congress has yet to address the many urgent issues facing our community, including the need to ensure long-term stability for immigrant communities, as well protecting funding for the Violence Against Women Act. Attacking abortion is a dangerous distraction.”
Trump “Strongly Supports” the Bill
With just a 52-seat majority, Senate Republicans would need to gather 60 votes to prevent Democrats from filibustering. In an effort to create a sense of urgency, House Republican leaders issued a statement declaring that their inspiration to vote on H.R. 36 came from the mass shooting in Las Vegas. They wrote that after the shooting, “we are reminded just how precious life is … We spoke of the potential of life — especially lives cut short through abortion.”
NARAL Nevada Las Vegas Organizing Coordinator Cyndy Hernandez responded with a statement of her own: “This horrific, politically motivated response is not what those of us here in Las Vegas need. On behalf of families across the state of every political background, NARAL Nevada calls on Rep. Amodei and Congressional Republicans to retract these offensive remarks and commit to never again using the pain and suffering of our community to justify taking away our rights.”
Youth often don’t realize they’re pregnant in the first several weeks, then must gather information and support — not to mention money.
Sen. Patty Murray (D-Washington) called the bill a “waste of precious time” on October 3.
“Let me be clear: This bill is as dead on arrival in the Senate,” she said, “just like it was the last time Republicans tried to pander to their extreme base by playing this particular political game with women’s health.”
The Republicans have never attempted to pass this legislation with control of Congress and the support of the White House, however. The Office of Management and Budget confirmed in a statement last week that the administration “strongly supports” the bill and “applauds the House of Representatives for continuing its efforts to secure critical pro-life protections.” This position is consistent with Trump’s letter to “Pro-Life Leader[s]” during the election which said he was “committed to…[s]igning into law the Pain-Capable Unborn Child Protection Act.”
Meanwhile, reproductive rights advocates point to the bill as an attempt to feed the president’s base, at the expense of pregnant people.
“Abortion after twenty weeks of pregnancy is rare and almost always medically complicated. There is no place in these conversations for politicians pursuing an ideological agenda with no knowledge of the medical specifics of each case,” said NARAL Pro-Choice America president Ilyse Hogue in a statement. “Given the complete failure of the GOP to deliver on their promise to rob healthcare from millions of Americans, this bill is designed entirely to mollify an agitated base and avoid Donald Trump’s ire at the lack of legislative action under Republican leadership. It’s unsurprising that the anti-choice GOP would make women foot the bill.”
If you would like to contact your senator about this bill, their information is available in the US Senate directory.
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