A 20-Week Abortion Ban Will Never Make It Past Congress — But It’s Still A Serious Threat

CREDIT: AP Photo/Manuel Balce Ceneta

This weekend, Sen. Lindsey Graham (R-SC) announced his intention to introduce a 20-week abortion ban in the Senate. Appearing on Fox News Sunday, the senator claimed that the issue represents “a debate worthy of a great democracy” and the government needs to decide its “proper role” in protecting a fetus at 20 weeks. “The state, the government has a legitimate interest to protect the child at the 20-week period of development, because they can feel pain,” Graham said. “That’s what a rational humane society should do.”

Graham, who is up for re-election, is likely choosing to wade into reproductive rights in an attempt to boost his conservative credentials. It’s a largely symbolic gesture. The Democratic-controlled Senate probably wouldn’t even bring a 20-week ban to a floor vote, much less approve it. That’s why the 20-week measure that the House passed in June is currently stalled.

But make no mistake. Even though this type of abortion restriction doesn’t have much of a chance of advancing on a national level, it’s still advancing in other ways. 20-week abortion bans — often called a “fetal pain laws,” because anti-choice lawmakers like Graham justify them by citing the scientifically disputed claim that fetuses start to feel pain at that point — have been a successful strategy for the anti-choice community. In fact, it’s an area where abortion opponents have the upper hand.

Why? Because the emotional language around later abortions plays in the anti-choice community’s favor. Particularly after illegal abortion provider Dr. Kermit Gosnell made headlines for his horrific crimes, abortion opponents were quick to conflate all later abortions with barbaric procedures. As anti-abortion activists tell horror stories about doctors murdering live babies and women left at the mercy of unsanitary clinics, it’s perhaps no wonder that Americans have fallen in line behind them. The American public’s support for legal abortion drops off dramatically after the first trimester.

The anti-choice community is winning people over even though they don’t have any evidence to back up their “fetal pain” claims. The vast majority of scientists agree that it’s impossible for fetuses to feel any pain before the cerebral cortex develops in the third trimester. Even the handful of scientists who have ventured into the field of “fetal pain,” and whose work is now repeatedly cited to justify 20-week abortion bans, recently told the New York Times that they never intended their research to be used to restrict reproductive rights. Nonetheless, politicians like Graham continue to parrot talking points about fetal pain, and their misleading statements often go unchallenged.

It’s a self-perpetuating cycle. This attitude about late-term abortion has been stoked by the anti-choice community, and it also helps sustain their movement to curtail reproductive rights. Now, when 20-week abortion bans are discussed in the mainstream media, they’re typically characterized as an abortion restriction “that polls well.” That helps fuel the idea that fetal pain laws are moderate, and the anti-choice activists pushing for them aren’t being so unreasonable.

And they are certainly pushing. Over the past several years, nine states have enacted 20-week bans specifically on the basis that unborn fetuses can feel pain at that point. In two states — Georgia and Arizona — fetal pain measures have been blocked for violating Roe v. Wade, which specifically guarantees the constitutional right to an abortion until the point of viability, generally considered to be around 24 weeks. But that hasn’t stopped conservative lawmakers from continuing to push. Just last week, a new 20-week ban took effect in Texas.

The fight is becoming more localized, too. After failing to advance a 20-week ban in the New Mexico legislature, anti-choice activists brought the issue straight to Albuquerque. They collected enough signatures to get the issue on the next ballot, and it’s up for a vote this month. If it’s approved, Albuquerque could become the first city with its own local ban on abortion — and it may not be the last. The militant anti-abortion group that’s leading the effort, Operation Rescue, has indicated it will bring this strategy to other cities. “We will take it to the local level if that is what we need to do,” an Operation Rescue spokesperson said in September. “Let’s zone them out. Let’s take any opportunity available to us.”

So how can reproductive rights supporters reclaim some of this ground?

Abortion opponents have had a lot of success in this area focusing solely on the unborn babies — and the emotional language of “babies” doesn’t necessarily stack up too well against the philosophical language of “choice.” But there’s emotional context for discussing the importance of maintaining the right to a later abortion, too. The pro-choice community can redirect the conversation by putting the woman back into the conversation.

In Graham’s explanation of his support for a 20-week ban, he didn’t mention the pregnant women once. His discussion solely involves the fetus, as if it’s a wholly separate entity from the woman. But, of course, women are the ones ultimately seeking later abortion procedures, and they have their reasons. Typically, later abortions — which are incredibly rare — occur in extremely desperate situations. Sometimes, low-income women are forced to delay abortion until that point because it takes them that long to save up the money for it. Other times, women discover serious fetal abnormalities that weren’t evident earlier in the pregnancy. Cutting off their access to health care leads some of those desperate women to resort to dangerous methods to end a pregnancy.

A recent poll commissioned by Planned Parenthood found that when Americans are given more of that context about why a woman might need a later pregnancy, they actually tend to oppose 20-week abortion bans. The researchers noted that they don’t expect that a 20-week ban would be approved by popular referendum in any state if all Americans received this type of information about the “real-world consequences” of denying women access to this type of health care. In a statement responding to Graham’s intention to introduce a 20-week ban, a spokesperson for Planned Parenthood Action Fund reiterated that message. “While women should not have to justify their personal medical decisions, the reality is that abortion later in pregnancy is very rare and often happens under heartbreaking and tragic circumstances,” Eric Ferrero, the group’s vice president for communications, noted.