Stop the National 20 Week Abortion Ban: Oppose H.R. 36
Representatives Trent Franks and Marsha Blackburn introduced H.R. 36 on the first day of the 114th Congress. This is the latest attempt by anti-choice politicians to deny women the ability to access safe, legal abortion care. This harmful bill would ban almost all abortion care after 20 weeks in the United States, and must be defeated.
H.R. 36 Would Jeopardize the Health and Safety of Women
Women need to access abortion care later in pregnancy for a variety of reasons, and must have the ability to make the decisions that are right for them, in consultation with their health care providers. A woman’s health, not politics, should be the basis of important medical decisions.
It is clear that this bill fails to consider the real circumstances and complications women can face during pregnancy. Emily[i] from South Carolina is a 26-year-old mother of two girls. During her third pregnancy, she had extreme health symptoms including blurred vision and abdominal pain. After testing, she was diagnosed with preeclampsia, which posed a serious threat to her health. Accessing abortion care was critical for her, yet would have been denied under Representatives Franks’ and Blackburn’s proposed ban.
Christy Zink, from Washington, D.C. was 21 weeks pregnant when routine post-20-week tests revealed that the fetus’ brain had not developed—a condition called agenesis of the corpus callosum. During the House Judiciary hearing in 2013, Christy said “I would have had to carry to term and give birth to a baby whom the doctors concurred had no chance of a life and would have experienced near-constant pain. If he had survived the pregnancy—which was not certain – he might never have left the hospital. My daughter’s life, too, would have been irrevocably hurt by an almost always-absent parent. The decision I made to have an abortion at almost 22 weeks was made out of love and to spare my son’s pain and suffering.” If Christy had sought care after passage of H.R. 36, her doctor would be facing fines or imprisonment for providing compassionate care to her and her family.
H.R. 36 Would Criminalize Doctors for Providing Compassionate Care
There are many reasons why a health care provider, in consultation with a patient, might determine that a post-20 week abortion is the best medical care. Those reasons can include severe fetal anomalies that are inconsistent with life, or serious health risks that arise from pregnancy. However, this bill would take that decision away from a woman and her health care provider. This extreme bill threatens doctors with fines and/or imprisonment for providing the current standard of care. In addition, it expands medical liability by granting relatives of the patient the ability to sue doctors. It would have a chilling effect on the provision of abortion care in the U.S.—exactly the hope of the bill’s anti-choice supporters.
Extreme, anti-choice politicians are using this bill to insert themselves into the exam room to block the provision of care, against medical judgment and expert clinical practice. Since its initial introduction in January, H.R. 36 contains very few narrow instances in which a medical professional, rather than a politician, would be able to decide on the best course of treatment. It contains no exception to preserve the health of the woman. Instead, it includes only a vague life endangerment exception which exposes doctors to the threat of criminal prosecution, limiting their options for care that is often needed in complex, urgent medical situations. In practice, this would place providers in an unconscionable position: a physician would be forced to let a woman’s condition deteriorate to the point of life endangerment before being allowed to provide necessary medical care.
When first introduced in January 2015, the bill was controversial even among anti-choice politicians because its rape and incest exceptions applied only in cases where the rape or incest had been reported to law enforcement. Now, in the May 2015 version of the bill, the bill’s champions have included new barriers for rape survivors seeking care. If H.R. 36 were to become law, adult survivors of rape could not access abortion care unless they had received counseling and/or medical treatment at least 48 hours prior to the abortion procedure. Not only is this an extra expense and a waiting period that only applies to victims of a crime, it ignores the fact that reproductive health clinicians already provide quality, evidence-based counseling for women.
Worse, the reporting requirements remain in the bill, applicable only to minors who are victims of sexual violence and incest. This is a clear disconnect with the experiences of sexual assault survivors. Young people may choose not to report sexual assault for a variety of reasons, including their own safety and lack of support network, and this bill would seek to punish them for such a decision by denying them care.
20 Week Ban Rejected By Voters
In November 2013, voters in Albuquerque, New Mexico defeated a 20-week ban ballot initiative by a double-digit margin. Once voters were fully informed, they turned out in record numbers and the ban was defeated 55% to 45%.
Further, a 2013 poll by Hart Research Associates shows voters across the nation do not support these bans:
- Seventy-one percent (71%) of voters from all parties say that these types of abortion bans are the wrong issue for Congress to be spending time on. Breaking this down further, 62% of Republicans and 70% of Southerners felt this way. Even a majority of voters who say abortion care should be illegal in all or most circumstances do not think this should be a focus for Congress; and
- Sixty-one percent (61%) of all voters say abortion care should be legal after 20 weeks if a woman’s doctor determines that the fetus is not yet viable and the woman and her family determine that her health and personal circumstances are such that she should not continue her pregnancy. [iv]
20 Week Bans are Unconstitutional
This proposed ban on abortion care is clearly unconstitutional and at odds with established legal doctrine. Since Roe vs. Wade, courts have held that pre-viability bans are unconstitutional and that any ban on abortion care must have an exception for the health of the woman. H.R. 36 violates both requirements and is a bald-faced effort to undermine Roe.
In May 2013, the Ninth Circuit Court of Appeals struck down Arizona’s similar 20-week abortion ban as unconstitutional. The court ruled that because the 20-week ban “deprives the women to whom it applies of the ultimate decision to terminate their pregnancies prior to fetal viability, it is unconstitutional under a long line of invariant Supreme Court precedents.”[ii]
H.R. 36 is based on faulty and inaccurate science.
The very premise of this bill—that a fetus can feel pain at 20 weeks—is contrary to credible scientific evidence and without support from leading medical experts. In 2010, the Royal College of Obstetricians and Gynaecologists (RCOG) published a report commissioned by the British government, which reviewed the latest evidence, and found that “the fetus cannot experience pain in any sense” prior to 24 weeks gestation, and “after 24 weeks, it is difficult to say that the fetus experiences pain because this, like all other experiences, develops postnatally along with memory and other learned behaviours.”[v] Those who argue that a fetus can feel pain at 20 weeks do so contrary to credible scientific evidence and without support from leading international medical experts.
[i] Name changed to protect privacy.
[iv] Hart Research for Planned Parenthood, “A DEEPER LOOK AT VOTERS’ OPINIONS ON 20-WEEK ABORTION BANS,” August 28, 2013, available at http://www.plannedparenthood.org/files/PPFA/FINAL_20_week_bans_polling_memo2.pdf
[ii] Isaacson v. Horne No. 12-16670 D.C. No.2:12-cv-01501-JAT (9th Circ. May 21, 2013)
[iii] Governor Tomblin Veto Statement http://www.governor.wv.gov/media/pressreleases/2014/Pages/GOVERNOR-TOMBLIN-VETOES-HB-4588.aspx
[v] Royal College of Obstetricians and Gynaecologists, Fetal Awareness: Review of Research and Recommendations for Practice 5 (2010).