How Anti-Choice Lawmakers Are Getting Around Roe v. Wade
Those 20-week abortion bans you keep hearing about are unconstitutional.
Broken-hearted but matter-of-fact, my best friend told me there was a complication with her pregnancy. It was stage three twin-to-twin transfusion syndrome. She explained that, with a shared placenta, too much blood was being transfused to Baby A at the expense of Baby B, and the condition was progressing fast—Baby B was showing signs of brain damage from the lack of blood and Baby A's heart was becoming dangerously enlarged.
She traveled from New York to the Children's Hospital of Philadelphia for a battery of tests that quickly led to a procedure to terminate Baby B in order to save Baby A. She was 20 weeks pregnant. While a typical second-trimester abortion might involve injecting potassium into the heart of the unhealthy fetus, that's not an option when twins share a placenta. Instead, she underwent a laparoscopic procedure to deliver currents of heat directly to Baby B's umbilical cord. She had to carry both fetuses—one deceased, one healthy—until she gave birth several weeks later. If she had waited much longer to make a decision, both would have died.
According to the nonprofit Guttmacher Institute, only 1.3 percent of abortions in the United States happen at or after 21 weeks following the woman's last menstrual period (or LMP, the way doctors date a pregnancy); nearly 89 percent occur in the first 12 weeks. Yet those 1.3 percent of terminations have become a critical battleground in the war on abortion access.
While Roe v. Wade affirms women's right to have an abortion, the 1973 ruling allows states to restrict or ban termination after fetal viability, which is generally accepted to be around 24 weeks LMP. Although if the mother's life or physical or mental health is at risk, the state can't get in the way.
But anti-choice activists and legislators have been steadily chipping away at abortion access ever since Roe, and with increased fervor in the past few years. "While in theory, Roe v. Wade remains the law of the land, it's been like death from a thousand cuts with more than 330 state laws limiting access to abortion since 2010," says Andrea Miller, president of the National Institute for Reproductive Health (NIRH).
That year, Nebraska earned the dubious honor of becoming the first state to enact a ban on abortion at 20 weeks post-fertilization (or 22 weeks LMP), making exceptions only if the mother's life is was in danger or her physical health was severely compromised. Now, 16 states have 20-week bans, with Mississippi and North Carolina's kicking in slightly earlier at 20 weeks LMP, or 18 weeks postfertilization. (Side note: It makes sense that anti-choice legislation focuses on fertilization date rather than the medical standard because of their argument that life begins at conception, but it's confusing as hell for regular people to follow.)
Problem is, in most pregnancies, screenings for fetal anomalies aren't typically done until right before these bans kick in. "The routine anatomy ultrasound is done at 18 to 20 weeks [LMP]; structural problems in the brain, heart, or kidney often can't be detected until the second trimester," explains Stephen Chasen, an ob-gyn at Weill Cornell Medicine in New York City. Chasen specializes in maternal-fetal medicine and the majority of abortions he performs are in planned pregnancies where a fetal anomaly is discovered.
Only 1.3 percent of abortions in the United States happen at or after 21 weeks, yet those procedures have become a critical battleground in the war on abortion access.
He cautions against artificial deadlines because they mean people have a very limited window to detect, diagnose, and decide how to proceed with their pregnancy. "If we suspect a problem, things like genetic testing, MRI, consultations with a specialist, and second opinions can take several weeks. By that time, they're getting to 24 weeks or beyond," Chasen says. A woman could find out that her fetus wouldn't live outside the womb, but not be able to terminate because her state has a ban on abortions after 20 weeks post-fertilization and she can't afford to travel to a state that doesn't.
If you've been reading closely, you'll have recognized immediately that these 18- and 20-week bans violate Roe v. Wade, because they're restrictions before a fetus is viable outside the womb. But anti-choice groups and lawmakers are trying to get around this fact by offering, well, an alternative fact—that fetuses can feel pain at this stage. In January, Trent Franks of Arizona introduced the Pain-Capable Unborn Child Protection Act, or HR 36, which would ban abortions after 20 weeks postfertilization. (Similar bills passed the House in 2013 and 2015.)
"That is junk science," says Miller, who has more than 20 years of experience in reproductive rights and women's health, including her role at of NIRH. "There has been no peer-reviewed documentation that supports their theory, but they use this claim because they're trying to inflame the issue."
The most widely cited study on this topic was published in JAMA in 2005, which found that while evidence was limited, fetuses most likely don't feel pain until the third trimester (27 to 28 weeks LMP), based on brain and nervous system development. "There is no evidence from anyone that the fetus feels pain or suffers during a second-trimester abortion procedure," Chasen says.
Still, anti-choice groups hope that talking about fetal pain will further their agenda. Indeed, Katherine Franklin, spokeswoman for Ohio Right to Life, told The Hill in December that a 20-week ban would be "most palatable" to the Supreme Court and may ultimately pave the way to overturning Roe v. Wade. "It's not just the Ohio strategy but the national strategy," she said. Chasen says the motives behind 20-week bans are clear: "This demonstrates very clearly that those who would deprive women of safe and legal abortion are willing to make wholly unsupported claims in service of these goals."
It's important to remember that these laws dreamed up by theocrats affect the medical decisions of real people and their families. And sometimes fetal anomalies present themselves long after viability, at a point when doctors agree that the fetus can feel pain. What happens then? Those were the questions Erika C. had to grapple with before having an abortion at 32 weeks.
"We had a high-risk pregnancy, but there was always hopeful news, which was why we didn't consider termination earlier," Erika says. But at week 30, she received a dire update: The baby wasn't growing or swallowing. "Our choices were to carry to term and he would either be stillborn or alive for a short period of time before he choked to death, or we could end his heartbeat while he was still in the womb," she says.
Although her home state of New York is considered one of the most permissive in the country, its abortion laws pre-date Roe v. Wade. Abortion is part of New York's penal code rather than its public-health code, and criminalizes termination after 24 weeks except to save the mother's life. (Termination of a non-viable fetus is legal under Roe, but that protection goes out the window if your state has chosen to ban abortion after 24, or 20, weeks.) Even though federal law supersedes state law, most clinics and hospitals base their policies on the state law, which meant Erika couldn't find a provider who would abort her fetus. (The New York State assembly is considering a bill known as the Reproductive Health Act, which would solidify Roe's protections within the state and decriminalize abortions after 24 weeks.)
Instead, she flew to Colorado for a third-trimester abortion. She met with Warren Hern, one of only four remaining doctors in the country who acknowledge performing abortions this far along. There, Hern injected the fetus with a drug to stop its heart. Erika flew back to New York and went to the hospital that night to be induced and deliver her stillborn baby.
"Some people might have chosen to carry to term and had a magical 10 minutes with their baby," she says. "I don't judge any person's choice, but for me it was sparing the baby as much suffering as possible."
Anti-choice lawmakers are trying to get around Roe v. Wade's protections by falsely claiming that fetuses can feel pain as early as 20 weeks.
A recent report from the New York Civil Liberties Union identified other such cases of women who get caught in the gap between Roe v. Wade and New York's state abortion laws, but it also illustrates what happens around the country: Women having to pay to travel out of state to get an abortion that's banned where they live.
The NYCLU report, titled "Critical Conditions: How New York's Unconstitutional Abortion Law Jeopardizes Women's Health," includes the stories of a woman diagnosed with cancer while pregnant, a fetus that had a massive brain hemorrhage in the third trimester, and one that would die just minutes after birth.
Even the most strident anti-choice advocates might feel sympathy when there are serious health issues at stake. But there are many other reasons why women have abortions after the first trimester. In one case outlined in the NYCLU report, a 12-year-old girl had been sexually assaulted, and her parents didn't discover she was pregnant until the 26th week. "For a number of reasons—including shock and stigma—women and girls who have been raped may seek care later in pregnancy," the report reads.
Jennifer Moore-Conrow, an abortion provider in Pennsylvania, tells me of other common scenarios, like young girls and older women with irregular periods who aren't aware that they're pregnant right away. Factor in restrictions on abortion access in states like hers—including a 24-hour waiting period, mandated counseling, and parental consent for minors—and the window for a legal abortion becomes even narrower. Pennsylvania, too, is currently considering a 20-week ban.
Something as straightforward as not being able to afford an abortion is also at odds with bans based on gestational age. Women who don't have the money to pay for an early procedure might find themselves gathering funds for a later, more expensive one; that's assuming they don't get pushed up against legal limits in the interim.
There are plenty of reasons why women have abortions in their second trimester, like diagnosis of a fetal abnormality, needing to save up for the procedure, having to wait for an appointment, or being a victim of rape.
Under the Hyde Amendment, which House Republicans are pushing to make permanent law, federal funds can't be used for abortion unless the pregnancy is a result of rape or incest, or is a threat to the mother's life. This rule affects low-income women and teens insured by Medicaid and the Children's Health Insurance Program as well as reproductive-age women with disabilities insured by Medicare.
"In the 40 years that Hyde Amendment has been in existence, it disproportionately impacts low-income women and women of color," says Destiny Lopez, co-director of All* Above All, a campaign that unites more than 100 organizations to lift abortion coverage bans. "One in four women who are denied an abortion due to the Hyde Amendment are forced to carry the pregnancy to term."
Even if a woman can cover the cost of termination itself, Moore-Conrow adds that not having a provider nearby can be costly and limiting, too. Clinics are shutting down at a record pace, often due to Targeted Regulation of Abortion Providers (TRAP) laws that regulate everything from size of procedure rooms to the width of hallways. TRAP laws usually require clinics to meet the state standards for ambulatory surgical centers, even though abortion has lower rates of complications than colonoscopy (and endoscopy centers don't have to meet these requirements). Upgrading a facility can cost hundreds of thousands of dollars and many closed in response: TRAP laws are part of the reason there was a net loss of 141 clinics between 2011 and February 2016.
While it's true that a June Supreme Court ruling struck down regulations like these in Texas, more than half of the state's clinics had shuttered since HB2 was signed in 2013 and it takes time to re-open. Without a local option, women may face extra costs from having to travel several hundred miles to get an abortion, a trip which can require arranging transportation, time off work, and childcare. Multiply those costs by two if there's a mandated waiting period. These laws also lead to increased wait times, which can lead to later abortions, which, again, cost more money and might be banned in your state. It's a vicious circle.
Under the new administration, which includes staunch anti-choicer Mike Pence, lawmakers are becoming even more emboldened. Indiana, where Pence was governor, has been at the forefront of some of the nation's most restrictive abortion laws, including mandatory waiting periods, forced ultrasounds, and limited insurance coverage, all on top of a 20-week ban. And just yesterday, Pence made the tie-breaking vote to allow states to block Planned Parenthood from receiving family planing funding because they perform abortions.
When Ohio Governor John Kasich simultaneously considered two abortion bills in December, the one that generated massive public outcry was a so-called "heartbeat bill" that would have banned abortion when fetal cardiac activity can be detected, which is around 6 or 7 weeks. Kasich vetoed that controversial bill, but turned around and immediately signed a 20-week ban that allows exceptions only if the mother's health is in danger—but not for cases of rape, incest, or fetal anomalies. The heartbeat bill may have just been a distraction from getting the 20-week ban passed, but in January, one congressman proposed a now-stalled version of that bill that would outlaw abortion nationwide.
States are increasingly taking aim at a specific abortion procedure known as dilation and evacuation (D&E), which the American College of Obstetricians and Gynecologists says is the most common way to terminate a pregnancy after 13 weeks, and is also used in the case of some miscarriages. In January, Arkansas has effectively made second-trimester abortions inaccessible by criminalizing D&E; the other procedure that would be used this far along in pregnancy, dilation and extraction or D&X, was banned by the Supreme Court in 2007. On March 20, the Texas Senate voted to ban D&E and the bill now goes to the House. As more states work to ban what anti-choice activists have dubbed "dismemberment abortion," the Guttmacher Institute says that women and their doctors might be forced to make medical decisions based on fear of prosecution. One alternative to D&E, per Guttmacher? Inducing labor.
Lawmakers are even more emboldened under the new administration, which includes staunch anti-choicer Mike Pence.
Julie Bindeman, a Maryland-based reproductive psychologist, knows what it's like to go through this. At 20 weeks pregnant, doctors discovered something wrong with the development of the baby's brain ventricles, which was causing excess fluid in the brain. Bindeman learned that if her child made it to term (the very best-case scenario), he'd immediately need what would be the first of many operations to relieve pressure on his brain. He could potentially live for several decades, but would have the mental development of a 2-month-old. "The thought of having a child that was a shell of a human being was crushing," Bindemen recalls.
Although she was still under the 24-week mark to have an abortion legally in Maryland, she faced another unexpected complication: George Tiller, one of the few so-called "late-term" abortion providers in the country, had recently been murdered by an anti-choice activist, and she couldn't find a provider in Maryland who would do a D&E after 20 weeks. Instead, she was induced at 21 weeks and endured an 18-hour labor to deliver a stillborn baby.
Bindeman became pregnant again a few months later, only to discover the fetus had the same rare brain anomaly and the same prognosis. This time she was 19 weeks along and was able to have a D&E, and the experiences were vastly different. With her previous termination, she gave birth to a stillborn in a traditional hospital setting, surrounded by happy women delivering healthy, full-term babies—and it came with all the pain of labor. The ability to have a D&E meant she'd be able to stay out of the maternity ward; she had a surgical, two-day outpatient procedure. (Bindeman and her husband now have three healthy children.)
While politicians battle over legislation, abortion-rights advocates maintain their position that this choice shouldn't be linked to a timeline, nor is it up to lawmakers to judge anyone's life circumstances. "We shouldn't assume that those who need care in the second trimester don't deserve it as much as those who can obtain it in the first trimester," says Miller of NIRH. "These are critical, life-altering decisions that should not be forced upon anyone."
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