By some measures, they’re right. This policy — often construed as a “fetal pain ban,” since it’s based on the scientifically inaccurate claim that fetuses can feel pain after 20 weeks of pregnancy — is picking up steam on a legislative level. Ten states already have 20-week bans on the books, and several lawmakers introduced new fetal pain bills at the beginning of this year. This past weekend, West Virginia became the first Democratic-controlled state to pass a 20-week ban, and it’s not yet clear whether the state’s Democratic governor is going to block it. Abortion opponents are now able to claim that this is an issue with bipartisan support.
The push to cut off access to later abortion services has always relied on framing 20-week bans as moderate and popular. This has been working really well for the anti-choice community, which is able to capitalize on emotional outrage about “fetal pain” and come across as entirely willing to compromise. Lila Rose, the president of the right-wing group Live Action, often points out that 20 is exactly half of a full-term 40 week pregnancy, so it’s a perfect middle ground.
But don’t be fooled. The political momentum for 20-week bans isn’t actually about compromising, or about adhering to a specific deadline that will prevent fetuses from feeling pain. It’s really about finding an initial foothold to chip away at Roe v. Wade, and then continuing to move the goal posts. It’s the first step in a larger strategy to cut off legal abortion access altogether, cloaked under the guise of a “moderate” policy.
For evidence, look no further than what’s currently going on in Mississippi. Lawmakers there are trying to pass a 20-week ban — but this week, the Senate made a last-minute change that actually transforms the bill into a more restrictive ban.
Lawmakers moved up the cut-off point by using a new way to define pregnancy. Many abortion restrictions calculate gestational age beginning when a fertilized egg implants on the uterine wall, which is the medical and scientific definition of pregnancy. That means that what we refer to as “20-week bans” are actually 22-week bans, if you’re counting from the end of the woman’s last menstrual period. Mississippi’s new bill, however, chooses to calculate gestational age based on a woman’s last period rather than based on implantation. There’s nothing wrong with that in theory. But in the context of an abortion ban, that ends up shaving off about two weeks from the legally acceptable window to terminate a pregnancy.
“It goes far beyond similar legislation in neighboring states,” Felicia Brown-Williams, the director of public policy for Planned Parenthood Southeast, said in a statement regarding Mississippi’s proposed ban. “Legislators should stop wasting taxpayer time and money by pushing bills that could easily end in litigation.”
Mississippi is modeling the new legislation after a similar law in Arizona, which is the only state so far that’s passed a fetal pain ban outlawing abortion two weeks earlier than usual. Last May, Arizona’s restrictive ban was permanently struck down by the U.S. Court of Appeals for the Ninth Circuit for overstepping the legal protections in Roe v. Wade. And at the beginning of this year, the Supreme Court reaffirmed that decision by refusing to review the Ninth Circuit’s ruling. The lawmakers in Mississippi are likely counting on the fact that their state is under the jurisdiction of a much more conservative circuit court, which recently upheld an extremely restrictive abortion law in Texas that’s forcing dozens of clinics to close.
So why does all of this matter, and what does it say about the larger strategy behind later abortion bans? It proves that the states enacting 20-week bans aren’t really interested in a good faith effort to accomplish what they claim they care about, which is preventing women from exercising their abortion rights after a specific point that “causes pain” to their fetus. In fact, there’s no good policy justification for this type of restriction at all.First of all, the arbitrary cut-off clearly doesn’t matter to abortion opponents — since there’s no real scientific evidence to support the notion of fetal pain at 20 weeks after implantation, sneaking in an earlier ban under the same specious logic is even better. On top of that, it’s important to remember that cutting off later abortion access doesn’t even have a real impact on abortion opponents’ stated goal of lowering the abortion rate. Abortions after 20 weeks are already extremely rare, representing just 1.5 percent of all abortions nationwide. This is especially stark in Mississippi, since the state’s sole abortion clinic doesn’t even perform abortions after 16 weeks in the first place — this is essentially a meaningless ban.
But addressing a real issue or having a real impact isn’t the point. Instead, this policy simply allows Republicans to have a convenient talking point to make the case that Americans support limiting abortion rights. Unfortunately, that often comes at the expense of targeting women who are making heartbreaking decisions about a pregnancy that’s gone terribly wrong. A “fetal pain ban” or a “late-term abortion ban” is a politically popular way of defining a policy that can force women to carrydoomed pregnancies to term.
Amanda Allen, the state legislative counsel for the Center for Reproductive Rights — one of the groups that successfully litigated against Arizona’s ban — told ThinkProgress that all fetal pain bans are “as cruel as they are unconstitutional.” That’s because they typically have very narrow medical exceptions that prevent women from terminating a pregnancy even after they’ve discovered serious health issues.
“When states try to ban abortion earlier in pregnancy, they’re really banning it before the time that women can receive critical prenatal testing,” Allen pointed out. “Now that it looks like Mississippi is following in Arizona’s footsteps with this bill, lawmakers have added all these bogus findings about why this legislation is necessary for women’s health. But of course, it’s actually directly the opposite — it could force women to continue their pregnancies until a potential health issue becomes life-threatening.”
But lawmakers typically aren’t persuaded by that point. Indeed, when Arizona was arguing in favor of its restrictive ban, lawyers tried to make the case that fatal fetal birth defects are simply the “woman’s problem.”
The American people, on the other hand, actually are sympathetic to the emotional context about later abortion care. When voters realize why women may need a later abortion, they oppose cutting off access to that type of reproductive health care. This has been put to the test. Last year, when abortion opponents put a proposed 20-week ban up for a popular vote in Albuquerque, voters resoundingly rejected it for exactly this reason.
Nonetheless, this incremental strategy to undermine Roe continues to be extremely successful in state legislatures across the country. Anti-choice politicians aren’t showing any signs of stopping the onslaught of 20-week abortion bills.
“We’re continuing to see these relentless attacks from politicians. Right now, I’m tracking 12 different 20-week bans that have either been introduced this year or carried over from last session, and three of those are moving,” Allen noted. “I think we need to ask why lawmakers are so insistent on spending their time passing unconstitutional bills when states like Mississippi have some of the highest rates of child poverty and women living in poverty.”