On Tuesday, the House will vote on legislation that would ban abortion after 20 weeks. The bill, called “Pain-Capable Unborn Child Protection Act,” was sponsored by Sen. Trent Franks (R-AZ) and would make it a crime to perform or attempt an abortion after 20 weeks. Abortion providers could be fined or spend five years in prison or both, according to The Hill.
Similar bills passed the House in 2013 and 2015, but were blocked by Senate Democrats both times. The latest bill is unlikely to make it through the Senate this year, but its revival still represents a real threat to reproductive rights. President Donald Trump said he would sign the legislation if it were to pass, and 21 states have already enacted this ban, according to the Center for Reproductive Rights (bans in two states, Arizona and Idaho, have been permanently blocked by a court order and are not in effect).
“It is a priority of the anti-choice movement to see these types of abortion bans,” said Amy Friedrich-Karnik, senior federal policy adviser at the Center for Reproductive Rights. “It has been a trend in states for many years now but it popped up on federal level around 2013. What we noticed is that it popped up often at times when the-anti choice majority in Congress feels like they need to give something to their base.”
It’s not clear why the House is trying to push this latest ban, given court rulings in Arizona and Idaho. In 2014, the Supreme Court declined to hear the case on Arizona’s 20-week ban. The Court deferred to the 9th U.S. Circuit Court of Appeals’ ruling, which struck down Arizona’s law on the grounds that it violated multiple U.S. Supreme Court rulings, including Roe v. Wade defines the point of viability around 24 weeks of pregnancy.
“It’s blatantly unconstitutional but it doubles down and goes further than banning the type of care that women really need and might face at a certain point in their pregnancy,” Friedrich-Karnik said. “Providers who are in these situations where they need to provide a constitutional right that they have to help people access this care, are being threatened with jail, so it is cruel upon cruel to women seeking care and providers trying to provide it.”
Friedrich-Karnik said she definitely does not expect the Senate to take up the issue.
Elizabeth Nash, senior state issues manager at the Guttmacher Institute, said the states began passing 20 week bans in 2010, when a number of very conservative lawmakers were elected to state legislatures.
“We had this, for lack of a better term, a movement type of election and the legislature shifted pretty dramatically to the right. As a result, the abortion restrictions flied through state legislatures so in 2011 we started to see states pass it and then it almost seemed to be as soon as it passed in one state, you saw it in another state,” Nash said. “There’s a real connection between how conservative the legislature is and the kind of abortion restrictions we were seeing.”
Nash said the effort to pass a 20-week ban may be part of a wider effort to set up another U.S. Supreme Court fight on abortion. But even if it were to pass and the issue made its way to the U.S. Supreme Court, Nash said the court’s decision not to hear the Arizona case in 2014 and its 2016 decision in Whole Woman’s Health v. Hellerstedt suggests that arguments for the ban would not be successful. In the latter case, the court struck down two provisions of Texas’ HB 2, a sweeping abortion law which put burdensome requirements on abortion providers and threatened to greatly reduce the number of the state’s abortion clinics. In the majority opinion, Justice Stephen Breyer said there was no evidence to support the idea that the restriction benefited patients in any way.
“With the U.S. Court decision [on Hellerstedt] they said evidence is incredibly important when weighing abortion restrictions,” Nash added. “Looking at the evidence around the burden on women and factual basis for these restrictions, it does nothing to help the safety and health of women who need an abortion and it based on unproven claims.”
“[Twenty week bans] challenge the U.S. Supreme Court’s standards on abortion in three fundamental ways: by challenging the viability standard, by using a specific week standard, and by using extremely limited exceptions,” Nash said. “While it looks like Congress is clearly interested in banning abortion, it’s also interested in setting up challenge to Roe.”
There are a lot of concerns about the 20 week ban, including what the makeup of the U.S. Supreme Court would be if such a case made it to the highest court in the near future. Already, the Supreme Court has upheld a ban on a second trimester abortion procedure called Intact Dilation & Extraction (D&X).
In addition, one of the biggest reasons why this type of ban is so dangerous is that it is layered on top of all of the other abortion restrictions passed by conservative legislatures that make it difficult for women to access abortion earlier in their pregnancy. Several states are targeting a safe second trimester procedure called Dilation & Evacuation (“D&E”). A few states only have one abortion clinic. Many states require waiting periods before getting an abortion and parental consent and put onerous requirements on clinics that provide abortions that make it more difficult for those clinics to operate. Often, people have to go to other states to access care, which puts an extra financial burden on them and may further delay their abortions.
“There are restrictions and bans and all kinds of challenges to accessing abortions earlier on in many states and there are laws that make it difficult to access a clinic, and so it may be difficult for someone to access an abortion early in their pregnancy,” Friedrich-Karnik said. “Then a little later you have these kinds of bans that make it difficult for women to access care later. It’s really a maze we’ve created for women to access care.”