The GOP is set to vote on a 20-week abortion ban -- again

The U.S. House is again voting on a 20-week abortion ban. On September 26, members of the House of Representatives, along with prominent anti-abortion leaders, held a press conference to announce an October 3 vote on proposed legislation that would prohibit the provision of abortions after 20 weeks of a pregnancy. The legislation, misleadingly titled the Pain-Capable Unborn Child Protection Act, includes exceptions for the life of the person seeking an abortion and for pregnancies resulting from rape or incest; but in the case of rape, a patient must have sought medical treatment or counseling at someplace other than an abortion clinic at least 48 hours prior to the procedure. Doctors who perform an abortion in violation of the ban could face up to five years in prison. Previous versions of the bill passed the House in 2014 and 2015. [Facebook, 9/26/17; Rewire, accessed September 2017; Congress.gov, accessed September 2017, accessed September 2017]

The vote is a political move to “apply pressure” against “vulnerable” Democrats. According to Rewire, Marjorie Dannenfelser, the head of anti-abortion group Susan B. Anthony List (SBA List), acknowledged that the bill is unlikely to pass the Senate, but said she sees it as an opportunity to attack Democrats who she claimed are “really having trouble advancing late-term abortion as a humanitarian cause.” Dannenfelser sees the vote on a 20-week abortion ban as an opportunity to “apply pressure to vulnerable Senate Democrats, strengthening Republicans’ majority and ending the legislative firewall between a nationwide prohibition on legal abortion care at 20 weeks.” From Rewire:

An unconstitutional 20-week abortion ban scheduled for a vote in the U.S. House of Representatives next week likely won’t get far in the U.S. Senate. But a prominent opponent of abortion rights hopes the bill will apply pressure to vulnerable Senate Democrats, strengthening Republicans’ majority and ending the legislative firewall between a nationwide prohibition on legal abortion care at 20 weeks.

“There’s a lot of reasons to vote on legislation. One is to pass it [and] have the president sign it,” Susan B. Anthony (SBA) List President Marjorie Dannenfelser told Rewire Tuesday in an interview outside the U.S. Capitol. “Another is to make sure there is a very high-level public conversation,” especially “while we elect new senators who will add to the winning total.”

[...]

SBA List’s strategy plays into another high-level conversation occurring across the aisle. High-profile Democrats have increasingly cast off the notion of an abortion “litmus test” as an indicator of party loyalty, going as far as to invite anti-choice candidates into the fold. Advocates warned that Democrats consequently risked alienating core voters, especially Black women and other women of color. In the words of All* Above All’s Destiny Lopez, “it’s short-sighted and dangerous to pave the path to victory in 2018 at the expense of women.”

SBA List is now pouncing on Democrats’ self-inflicted vulnerabilities.

“Odds are, we’re not going to win this vote [on HR 36],” Dannenfelser said. “But Democrats, evidenced by the big arguments within the Democratic Party about whether this is a litmus test, are really having trouble advancing late-term abortion as a humanitarian cause. That’s what we want to highlight.”

Dannenfelser hopes a vote will prod Sen. Heidi Heitkamp (D-ND) to break party ranks—and make Sen. Claire McCaskill (D-MO) “very sorry” if she doesn’t, as expected. Both are facing tough reelections in ruby-red states.

Senate Majority Leader Mitch McConnell (R-KY) is willing to bring up the bill, Dannenfelser said.

“We’ve talked to him many times about this,” Dannenfelser said. “He has no problem bringing it up on the floor as an important thing to get people on record for, to have the conversation, to build the vote ’til next time.[”] [Rewire, 9/27/17]

Science does not support 20-week abortion bans

New England Journal of Medicine: A fetus cannot perceive pain until around 30 weeks into a pregnancy. According to The New England Journal of Medicine, “study after study has determined that perception of pain is not physically possible until nearly 30 weeks of gestation, when thalamocortical pathways are present and have begun to function.” A 2010 report from the Royal College of Obstetricians and Gynaecologists stated that “although the cortex can process sensory input from 24 weeks, it does not mean that the fetus is aware of pain. There is sound evidence for claiming the cortex is necessary for pain experience, but this is not to say that it is sufficient.” According to the American Medical Association Journal of Ethics, “a comprehensive, nonpartisan, multidisciplinary review of almost 2,000 fetal pain studies concluded that ‘the capacity for functional pain perception in preterm neonates probably does not exist before 29 or 30 weeks.’” The American College of Obstetricians and Gynecologist also gave a similar timeline -- saying a fetus cannot feel pain until the third trimester. [The New England Journal of Medicine, 9/1/16; Royal College of Obstetricians and Gynaecologist, March 2010; American Medical Association Journal of Ethics, October 2014; LiveScience, 5/17/16]

Fetuses recoiling from stimuli does not mean they feel pain. A common reason given in support of a 20-week abortion ban is that fetuses are shown to react or recoil to stimuli in the womb. A 2015 article on FactCheck.org found there was no causal relationship between fetal withdrawal from stimuli and feelings of pain because any “recoil is more of a reflex” that is distinct from “the experience of pain” itself. According to Salon, “Because the neural structures necessary to feel pain have not yet developed, any observable responses to stimuli at [20 weeks] -- like the fetal “flinching” during an amniocentesis - are reflexive, not experiential. Which is to say, the fetus at 20 weeks can’t actually feel anything at all.” [Media Matters, 5/20/16; FactCheck.org, 5/18/15; Salon, 8/7/13]

Anti-abortion groups misrepresent evidence to support 20-week bans

20-week bans are based on politics, not science. In 2013, Dr. Anne Davis, an abortion provider and consulting medical director at Physicians for Reproductive Health, told Salon that the push for 20-week bans caused patients to begin asking her about fetal pain, despite the overwhelming scientific evidence that the fetus does not feel pain at 20 weeks. Davis said, “It’s just another thing these women have to struggle with. And why? These are created concerns. They are not based in science, they are based in politics.” In a May 2016 article, The Daily Beast explained that even the researchers commonly cited by anti-abortion groups and politicians reject such use of their findings. One doctor, according to The Daily Beast, “told The New York Times that his frequently-cited research ‘did not deal with pain specifically’” and was being misrepresented by anti-abortion advocates. [Salon, 8/7/13; The Daily Beast, 5/19/16]

Anti-abortion pushback deliberately ignores differences in how fetal age can be measured in order to create confusion. When the Pain-Capable Unborn Child Protection Act was introduced in 2015, The Washington Post published a fact-check explaining different measurements of fetal age and how those differences are manipulated by anti-abortion activists. The 20-week ban “defines the age of the fetus as ‘post-fertilization age,’ calculated from the moment of conception.” However, “this is different from the widely-used definition used by medical professionals … counting the fetus age from the first day of the pregnant woman’s last menstrual period (‘LMP’).” According to researchers who spoke to The Washington Post, using post-fertilization age in the bill is “terribly confusing” to everyone, including patients. It leads to anti-choice activists saying that fetus are viable at 20 weeks, when in fact viability can begin at 24 to 28 weeks. Robin Marty in Dame magazine stated that House Majority Leader Kevin McCarthy (R-CA) relied on this confusion during the press conference by introducing a 5-year-old born at 22 weeks gestation -- not post-fertilization -- as evidence of the viability of pregnancies at that point in development. [The Washington Post, 5/26/15; Dame magazine, 9/27/17]

A 20-week abortion ban is unconstitutional

Guttmacher Institute: A 20-week abortion ban is unconstitutional under Roe v. Wade. The Supreme Court in Roe v. Wade established that abortion is protected up to the point of fetal viability. States can restrict abortion access after viability if there are exceptions for the life and health of the mother, which was established later in Planned Parenthood v. Casey. While some state restrictions on abortion pre-viability have been struck down by the courts, 17 states unconstitutionally ban abortion at 20 weeks post-fertilization. [Guttmacher Institute, January 2017, accessed September 2017]

Rewire: “20-week abortion bans are unconstitutional. Full stop.” According to Rewire, “20-week abortion bans are unconstitutional. Full stop. They’ve been unconstitutional since Roe v. Wade legalized abortion in 1973.” As Rewire explained, the viability standard since Roe “has been repeated over and over, and the Supreme Court and lower federal courts have never strayed from it.” However, state legislatures “began doing exactly what the Supreme Court said time and again they could not: enacting law that ban abortion before fetal viability.” From Rewire:

Make no bones about it, 20-week abortion bans are unconstitutional. Full stop. They’ve been unconstitutional since Roe v. Wade legalized abortion in 1973, and they will remain unconstitutional unless one of two things happens: the U.S. Supreme Court either overturns its landmark decision or reverses 40 years’ worth of case law about the importance of fetal viability.

[...]

That’s the central holding of Roe. You have the right to an abortion if the fetus isn’t viable. After viability, however, states can ban abortion, as long as those bans contain a health exception.

Even though the Court in Roe decided that fetal viability would be the benchmark for the balance between a person’s right to choose and the state’s interest in “potential life,” the Court was silent on when fetal viability occurs. It left that decision up to doctors. (It is widely cited to occur around 23-24 weeks.)

And so it has been for 40 years. This constitutional principle has been repeated over and over, and the Supreme Court and lower federal courts have never strayed from it. [Rewire, 5/12/15]

Right-wing and anti-choice media love to repeat the lies about 20-week bans

Townhall: Twenty weeks is “the point at which scientists have determined that unborn babies feel pain.” In reporting on the announcement of the October 3 vote, Townhall inaccurately stated that “the bill would ban late-term abortions after 20 weeks of pregnancy, the point at which scientists have determined that unborn babies feel pain.” Townhall also relied on a right-wing media strategy of conflating different measurements for fetal age in order to further restrict access to abortion. Townhall mentioned the 5-year-old boy McCarthy introduced during the press conference as someone who was born at “22 weeks gestational age (20 weeks).” From Townhall:

House Majority Leader Kevin McCarthy (R-CA) announced Tuesday that he will bring the Pain Capable Unborn Child Protection Act to the floor on Tuesday, October 3rd. The bill would ban late-term abortions after 20 weeks of pregnancy, the point at which scientists have determined that unborn babies feel pain.

“Science is increasingly showing by eight weeks children in the womb react to touch, by 20 and if not before, they feel pain,” McCarthy said. “Not only can they feel pain but if they are born at 20 weeks, these children increasingly have a chance to live, to grow, and lead full lives.”

Rep. McCarthy introduced Micah Pickering, a five-year-old boy who was born prematurely at 22 weeks gestational age (20 weeks).

“Looking at him I don’t think anybody would be able to tell,” Rep. McCarthy said. “He’s a perfectly healthy boy and I know everybody here is happy to have you here, Micah. This legislation is for children like Micah, it’s about drawing a line when babies have grown for 20 weeks, when they can feel pain, when they can see their noses, their ears, when we can hear the heartbeats, and we can feel their kicks and at the very least that’s when we can all agree that they should be protected.” [Townhall, 9/26/17; The Washington Post, 5/26/15]

Breitbart: This legislation “is based on the science” that a fetus can feel pain “as early as 18 weeks.” Without citing any credible scientific evidence to back up its claim, Breitbart.com claimed that the 20-week abortion ban “is based on the science that has uncovered how unborn babies are able to feel pain inside the womb, some as early as 18 weeks.” [Breitbart, 9/26/17]

Wash. Examiner: There is “no doubt” about fetal pain, and banning abortions at 20 weeks “sets a new legal standard,” updating Roe v. Wade. In an op-ed for the Washington Examiner, Rev. Frank Pavone, the national director of the anti-abortion group Priests for Life, stated that the Pain-Capable Unborn Child Protection Act “cites scientific evidence holding that there’s no doubt that preborn children can feel pain and that they can feel it no later than 20 weeks after conception.” According to Pavone, scientific studies that refute the right-wing fetal pain theory are “conducted by groups that support abortion,” just as studies denying smoking causes cancer were funded by the tobacco industry. Pavone also claimed, in opposition to years of legal precedent, that Roe v. Wade does not make a 20-week ban unconstitutional. Instead, Pavone argued that a 20-week ban based on the theory of fetal pain “sets a new legal standard not previously considered by the courts: that states have a right to protect unborn babies that can feel the pain of abortion.” From the Washington Examiner:

[The Pain-Capable Unborn Child Protection Act] cites scientific evidence holding that there's no doubt that preborn children can feel pain and that they can feel it no later than 20 weeks after conception. The act is also predicated on the fact that Roe v. Wade and subsequent abortion decisions do not address what we now know to be the physical torture that aborted babies suffer.

In recent years, the pain deniers haven't been relying so much on denying the pain of unborn babies. Perhaps that's because when doctors now perform in utero surgeries on unborn children, they anesthetize their tiny patients first. For whatever reason, the subject just isn't raised much anymore.

For instance, when various pro-abortion medical groups wrote to the Senate in 2015 opposing the federal Pain-Capable Unborn Child Protection Act, they downplayed the old claim that 20-week-old babies in the womb don't feel pain. A footnote to the letter mentioned “rigorous scientific reviews” that concluded that “fetal perception of pain is unlikely before the third trimester.”

But these “scientific reviews” were conducted by groups that support abortion. One is reminded of “studies” funded by the tobacco industry that found smoking didn't cause cancer. Even so, the best assertion that these pro-abortion groups could muster is that it's “unlikely” that babies can feel pain before 26 weeks' gestation.

[...]

The pain-capable bill sets a new legal standard not previously considered by the courts: that states have a right to protect unborn babies that can feel the pain of abortion. [Washington Examiner, 9/27/17]

The Daily Signal: The Journal of the American Medical Association “is sticking by its influential report” that fetuses cannot feel pain at 20 weeks “despite subsequent studies finding otherwise.” In a 2016 article about findings by the Journal of the American Medical Association (JAMA), The Daily Signal claimed that the JAMA “is sticking by its influential report asserting that unborn babies cannot feel pain at 20 weeks, despite subsequent studies finding otherwise.” In response to arguments that the JAMA report should be retracted, JAMA’s editor-in-chief wrote in a letter that “there is no evidence that the article” on fetal pain needed to be retracted. Specific language from the letter was not included in the Daily Signal article, which instead cherry-picked language from the letter in order to suggest a more ambiguous response from JAMA. From The Daily Signal:

The American Medical Association is sticking by its influential report asserting that unborn babies cannot feel pain at 20 weeks, despite subsequent studies finding otherwise. Three of the report’s five authors had or later would have ties to the abortion industry.

The Journal of the American Medical Association defended the report and declined a pro-life research group’s request for a retraction. However, the AMA publication’s top editor recently said the study wasn’t presented as the definitive, final word on the issue of fetal pain.

[...]

[I]n a June 14 letter, Howard Bauchner, editor in chief of the Journal of the American Medical Association, told Agresti that after a review the publication’s editors decided not to retract the 2005 article on the study.

The authors, Bauchner argued, “have included modifiers that reflect their review of the evidence available at the time, including uncertainty.” He added: “Although subsequently published reports may add to existing evidence on a topic, or propose alternative theories, that new information does not require retraction of previous review articles.” [The Daily Signal, 7/25/16; Retractionwatch.com, accessed September 2017]

Life News: “Science shows [fetuses] can feel pain” at five months gestation. Before the September 26 press conference, the anti-abortion outlet LifeNews reported that the 20-week ban was meant “to protect unborn children after five months - more than halfway through pregnancy, when science shows they can feel pain.” LifeNews also repeated lies pushed by U.S. representatives during a debate on the 2015 version of the bill, including quoting Rep. Sean Duffy (R-WI), who said, “Don’t talk to me about cruelty in our bill — when you look at little babies being dismembered, feeling excruciating pain, if we can’t stand to defend these children, what do we stand for in this institution?” From Life News:

House Majority Leader Kevin McCarthy (CA-23) will host a press conference tomorrow to detail when the chamber will vote on the Pain Capable Unborn Child Protection Act (H.R. 36). He will be joined by top pro-life lawmakers including Reps. Diane Black (TN-06), Representative Trent Franks (AZ-08), Representative Vicky Hartzler (MO-04), Representative Chris Smith and pro-life leaders.

They will be joined by the family of Micah Pickering to speak in support of legislation to protect unborn children after five months – more than halfway through pregnancy, when science shows they can feel pain. Micah Pickering is a five year old boy who was born at twenty weeks.

[...]

During the debate [in 2015] on the bill to ban abortions after 20 weeks, Congressman Sean Duffy gave what may be one of the most passionate defenses of the pro-life position ever seen on the floor of Congress. Duffy took on the claim often made by Democrats who support abortion saying they stand for the defenseless and voiceless.

[...]

“If you stand with the defenseless, with the voiceless, you have to stand with little babies. Don’t talk to me about cruelty in our bill — when you look at little babies being dismembered, feeling excruciating pain, if we can’t stand to defend these children, what do we stand for in this institution?” [Duffy] added. [LifeNews, 6/25/17]

EWTN’s Pro-Life Weekly: The Pain-Capable Unborn Child Protection Act “limits abortions after 5 months of pregnancy -- the point when unborn babies can feel pain.” Eternal World Television Network's (EWTN) anti-choice program Pro-Life Weekly aired interviews with McCarthy and Dannenfelser about the 20-week ban. Host Catherine Szeltner said the bill “limits abortions after five months of pregnancy -- the point when unborn babies can feel pain.” During the interview, McCarthy talked about “the pain the baby feels in the wombs at 20 weeks,” saying that “they can survive and we want to be able to protect them.” McCarthy also stated that “science proves” fetuses feel pain at 20 weeks and that “when I take the science, I take it to others across the aisle, I don’t see how they argue against this.” [EWTN, Pro-Life Weekly, 9/28/17]

Church Militant: “New study is suggesting unborn babies in the first trimester may experience pain.” Anti-abortion outlet Church Militant published an article that stated, “A new study is suggesting unborn babies in the first trimester may experience pain.” In reality, as the article admits, “the study comes to no definitive conclusion.” Instead, Church Militant outlined other studies about how a fetus “moves in response to external stimuli such as touch as early as eight weeks” as evidence to prove the fetal pain theory. From Church Militant:

A new study is suggesting unborn babies in the first trimester may experience pain. The scientific journal Cell, in a study etitled (sic) “Tridimensional Visualization and Analysis of Early Human Development,” published in March, sheds light on the advanced neurological development of the unborn.

Although the study comes to no definitive conclusion, embryologists now have a clearer picture of the extent of nerve development at early stages of gestation — a greater level of development than previously thought. The study says that “adult-like pattern of skin innervation is established before the end of the first trimester, showing important intra- and inter-individual variations in nerve branches.”

The medical field has had much to say on the science of fetal pain, including as the unborn child moves in response to external stimuli such as touch as early as eight weeks. “The fetus starts to make movements in response to being touched from eight weeks, and more complex movements build up as detected by real time ultrasound over the next few weeks,” said Vivette Glover of the Imperial College London in 2004. [Church Militant, 4/18/17]

RedState: Twenty-week bans show people who are “neutral on the issue” that “those selected by abortionists for death are capable of experiencing physical torture.” RedState applauded the bill as potentially “a massive victory for the pro-life cause” and argued that it could “help cement President Trump’s sometimes questionable pro-life cred.” RedState also claimed that 20-week bans show “how callous many in society have become when discussing abortion.” RedState argued that 20-week bans reveal to those “who may have been neutral on the issue” of abortion that “those selected by abortionists for death are capable of experiencing physical torture as they are killed under the banner of ‘choice.’” From RedState:

[The 20-week ban] bill is essentially a late-term abortion ban that would criminalize abortions at 20 weeks and beyond. Such a bill would mark a massive victory for the pro-life cause and help cement President Trump’s sometimes questionable pro-life cred.

The subject itself highlights how callous many in society have become when discussing abortion, reproductive “rights”, and the individual, growing unborn lives.

To encourage others to consider or support further legal protection for the unborn, one is almost required to make the case that at 20 weeks, an unborn person is able to feel pain. Suddenly, some who may have been neutral on the issue are appalled that those selected by abortionists for death are capable of experiencing horrific physical torture as they are killed under the banner of “choice”. Only then does abortion somehow seem worse. [RedState, 9/28/17]

National Catholic Register: “The rights of these babies must be taken into account” because fetuses at 20 weeks “can feel pain” and “can survive outside the womb.” Anti-abortion outlet the National Catholic Register claimed, “Studies are showing that unborn children as early as 20 weeks old can feel pain and that a small percentage, with the right treatment, can survive outside the womb.” The National Catholic Register stated, “These signs of viability, pro-life leaders say, demand that at least the rights of these babies must be taken into account in the abortion debate.” As evidence, the National Catholic Register pointed to a study by the Charlotte Lozier Institute, the anti-abortion research arm of SBA List, that claims fetuses at 20 weeks can feel pain and “exhibit defensive responses during invasive procedures” as early as six weeks. From the National Catholic Register:

Studies are showing that unborn children as early as 20 weeks old can feel pain and that a small percentage, with the right treatment, can survive outside the womb. These signs of viability, pro-life leaders say, demand that at least the rights of these babies must be taken into account in the abortion debate.

Another reason for the bill’s passage is that studies show unborn babies can feel pain around the age of 20 weeks, supporters of the bill said.

The Charlotte Lozier Institute, the research arm of the pro-life Susan B. Anthony List, documented the research showing that unborn babies can indeed feel pain at 20 weeks post-fertilization, as well as exhibit defensive responses during invasive procedures in the womb as early as six weeks post-fertilization. [National Catholic Register, 9/27/17]

Media should not lend credence to unscientific arguments, but should acknowledge the reality of later abortions

Media have an obligation to debunk junk science and right-wing talking points about so-called “fetal pain” and later abortions. In March, Rolling Stone reported on the ways that state-level anti-abortion politicians force doctors to give patients unscientific information about abortion, including regarding 20-week abortion bans. Rolling Stone also warned that journalists, in an effort to appear unbiased, “often unwittingly collude with this strategy, by quoting made-up phrases and fact-free medical claims in the course of statehouse reporting.” In turn, journalists also use quotes from reproductive rights advocates, which gives “both the true statement and the untrue statement equal weight, leaving readers to decide what is true and what is not - an increasingly difficult task, under the circumstances.” Right-wing media also regularly exaggerate the frequency of later abortions in order to create a perception that these medically necessary procedures are commonplace and required greater regulation. According to Romper, “Contrary to what some politicians believe … late-term abortions are very rare” and account for “only about 1 percent of all abortions performed each year.” From Rolling Stone:

Politicians play another role in the coordinated campaign to misinform the public about reproductive health care and abortion using taxpayer funds: They exploit the legislative process as a disinformation propaganda machine.

Here's how this works, using the 20-week abortion restrictions that have flooded state legislatures as an example. There are two competing types of 20-week bills, based on model legislation drafted by two different anti-choice organizations. One approach argues that fetuses can feel pain at 20 weeks, an assertion not backed by medical science; that model bill was written by National Right to Life Committee, and is titled the “Pain-Capable Unborn Child Protection Act.” The competing 20-week ban, drafted by Americans United for Life, uses women's health as a justification for the restriction, though an introductory note states the goal is to raise “public awareness of the negative impact of abortion.” In other words, like the Texas wrongful birth bill, it's exploiting the legislative process to “send a message.” Politicians repeat this false and misleading information on the floor of the chamber while debating the legislation, and when talking to the press.

Journalists often unwittingly collude with this strategy, by quoting made-up phrases and fact-free medical claims in the course of statehouse reporting. In an effort to be balanced, they may also quote a women's health advocate, who disputes the claims made by the anti-choice politician, giving both the true statement and the untrue statement equal weight, leaving readers to decide what is true and what is not – an increasingly difficult task, under the circumstances. In the course of the bill's route through the legislative process, propaganda and medically inaccurate claims are amplified into mainstream conversation, all of which undermines the ideals of informed consent and evidence-based care. [Rolling Stone, 3/21/17; Media Matters, 10/21/16; Romper, 10/25/16]

Later abortions are often medically necessary or are needed for particular personal circumstances. Anti-choice politicians and right-wing media often vilify people who have later abortions and largely ignore the reality that people who seek these procedures do so for a variety of personal and medical reasons. As Media Matters has previously recounted, reading the personal accounts of people who have had later abortions can challenge this imposed stigma. In addition to the stigma inflicted on patients receiving later abortions, restrictions like 20-week bans can also have a disproportionate impact on low-income people. As the Guttmacher Institute explained, these patients may have to delay an abortion to later in pregnancy “because they had difficulty raising funds for the procedure and travel costs, or because they had difficulty securing insurance coverage.” As reported in Harper's Bazaar, “If we accept a law that bans abortion after 20 weeks, we're saying that abortions are okay for women who have resources to get one immediately. We're saying they're not okay for other women, who might need time to pay for them.” In addition, 20-week bans magnify other restrictions on abortion access -- including waiting periods which can delay a procedure until after 20 weeks. [Media Matters, 10/25/16, 5/20/16; Guttmacher Institute, 9/15/15; Harper's Bazaar, 9/29/17]