On Tuesday, the House of Representatives will vote on the Pain-Capable Unborn Child Protection Act, a measure spearheaded by Reps. Trent Franks (R-AZ) and Marsha Blackburn (R-TN) that would cut off legal access to abortion services at 20 weeks after fertilization. It represents the most restrictive abortion bill to come to a vote in either chamber over the past decade. Here’s what you need to know about this attack on women’s reproductive rights — and how it fits into a broader, coordinated nationwide campaign to slowly chip away at abortion access:
It’s based on the scientifically-disputed theory that fetuses can feel pain before the third trimester of pregnancy.
So-called “fetal pain” measures are based on junk science that represents a minority position among medical professionals. Most doctors don’t believe that fetuses can feel pain until much later in pregnancy, after the point of viability (generally considered to be around 24 weeks), and scientific research has repeatedly confirmed this position. Nevertheless, abortion opponents have successfully stoked emotional outrage surrounding later-term abortion — particularly following the high-profile murder trial of illegal abortion provider Kermit Gosnell — by twisting the facts to make it appear that these abortions are always barbaric procedures.
It has sparked more controversy over Republicans’ attitudes toward rape.
The original version of Franks’ legislation did not include an exception for victims of rape or incest. Defending the lack of an exception in these cases, the Arizona congressman last week claimed that “the incidence of rape resulting in pregnancy are very low.” Franks is just the latest Republican to make an offensive comment about rape victims, and his comments inspired comparisons to former Rep. Todd Akin’s (R-MO) infamous assertion that women don’t often get pregnant from “legitimate rape” because the body “has ways of shutting that whole thing down.” Following the controversy that erupted from his statements, Franks revised the legislation at the last minute to include an exemption for survivors of rape and incest — but only if rape victims first report the sexual crime to the police, and if incest victims are minors.
Abortions after 20 weeks are already extremely rare, and the women who need them are usually in the most desperate of circumstances.
Although Franks claimed he didn’t need to legislate rape victims’ reproductive rights because the instances of pregnancies resulting from rape are “very low,” the instances of abortions after 20 weeks are actually much lower than that. Pregnancy results from rape an estimated 5 percent of the time, while abortions after 20 weeks represent just 1.5 percent of all abortions. The women who seek out this type of later abortion procedure tend to fall into one of two categories: the economically disadvantaged women who need to delay abortion until they can save up the money for it, and the women who discover serious fetal health issues only after their pregnancy has advanced. Criminalizing abortion after 20 weeks will force some women to give birth to fetuses with no brain function — or other types of fatal anomalies — and watch their children suffer outside of the womb during their short lives.
The national legislation initially started out as an abortion restriction for the women who live in Washington, DC.
Franks has repeatedly attempted to impose his anti-abortion agenda on the women living in the nation’s capitol. Because the District of Columbia does not have its own representation in Congress, lawmakers from other areas often use it as their legislative playground. Franks’ fetal pain measure failed last year, but that didn’t stop him from re-introducing it — and eventually expanding it to apply to women in every state. The Republican lawmaker said that Gosnell’s crimes compelled him to restrict abortion access not just for DC women, but for women across the entire country.
Even though a national ban has no chance of passing, 20-week bans are successfully advancing on the state level.
Franks’ 20-week ban is essentially dead-on-arrival in the Democratic-controlled Senate, and the President has already indicated that he will veto it if it comes to his desk. But that doesn’t mean fetal pain measures are nothing to worry about. In fact, this anti-choice strategy is successfully advancing on the state level. After Nebraska first enacted a 20-week ban on abortion in 2010, a handful of other states rushed to do the same. Now, according to the Guttmacher Institute, about 11 states have banned abortion services before the point of viability specifically based on the notion that fetuses can feel pain — and more states are currently advancing fetal pain bills. Texas is considering a 20-week abortion ban in its special session, and anti-choice lawmakers are hoping to rush it through. GOP-led legislatures in South Carolina and Wisconsin also may advance fetal pain laws in the last days of their sessions.
“Fetal pain” laws are unconstitutional, and state-level versions have been repeatedly blocked in court.
As increasing numbers of states have enacted 20-week abortion bans, courts have blocked several of them from taking effect. Fetal pain measures effectively narrow the window during which women may exercise their constitutional rights by moving up the cut-off for legal abortion services — a direct violation of Roe v. Wade guarantees the right to legal abortion until the point of viability. Twenty-week bans in Idaho, Georgia, and Franks’ home state of Arizona have all been blocked for this reason.
The anti-choice movement is growing bolder, and abortion opponents are demonstrating they’re not afraid to directly challenge Roe v. Wade.
Even though the national 20-week ban has no chance of becoming law, the fact that Republicans in the House brought it to a vote illustrates the fact that abortion opponents aren’t backing down from the fight. Over the past decade, anti-abortion Republicans have relied on an “incremental” strategy to limit abortion access, passing dozens of state-level restrictions couched in terms of “women’s health and safety” rather than attempting to ban the procedure altogether. Lawmakers used to be wary to advance stringent laws that overstep Roe and are likely be struck down in court. That’s not the case anymore. This session, state legislatures have passed increasingly harsh abortion bans — like a six-week ban in North Dakota and a 12-week ban in Arkansas — and they’ve made it clear that they want to test the boundaries of Roe v. Wade. “These laws are flying through,” Elizabeth Nash, a policy analyst for the Guttmacher Institute, told the New York Times. “The attention has really been at the state level around abortion issues. Now what you also see at the federal level is very disturbing, and it shows that abortion opponents are very emboldened.”
A previous version of this post stated that the House voted to approve the 20-week ban on Tuesday afternoon. In fact, the House voted to approve a vote on the legislation. The vote is expected to be later on Tuesday evening.