When the first 20 week abortion ban was introduced in Nebraska in 2010, anti-abortion advocates weren’t shy about their hopes that the bill would make it to the Supreme Court. Now, three years and 12 states later, Arizona has petitioned the Supreme Court to review its 20-week abortion ban. If the court agrees to take it up, which it could as early as 2014, that might actually end up being bad news for abortion opponents, and undo years of carefully crafted strategy when it comes to overturning Roe v. Wade.
The “Pain Capable Unborn Child Protection Act,” model legislation created by the National Right to Life Committee (NRLC) and first introduced in the state of Nebraska, claims that a fetus can feel pain by as late as 20 weeks post-fertilization, and bans any abortions that occur after that point. Arizona’s “Women’s Health Defense Act,” in comparison, bans abortion at 20 weeks conception – 18 weeks post-fertilization – claiming that at that point the “risks” of an abortion greatly increase, putting a pregnant person’s health in more danger.
The disproved concept of “fetal pain” is mentioned in the Arizona bill, which was drafted by Americans United for Life (AUL). But unlike the Nebraska bill, allegations of fetal pain is a secondary consideration, where as the crux of the bill is based on the idea that abortion can be regulated as long is it is done so under the guise of protecting the health of the person undergoing it.
The “woman’s health” language is a direct nod to Justice Anthony Kennedy, who voted in the majority for Planned Parenthood v. Casey, a case that limited abortion rights won in the Roe v. Wade decision. In Casey, the court ruled that states are allowed to restrict abortion access prior to viability — a point in the pregnancy when a fetus is likely to survive on its own if born early, generally thought to be around 25 weeks gestation — if it didn’t present an “undue burden” on those choosing the procedure. By cloaking their unconstitutional pre-viability ban as a “health and safety” regulation, AUL and their supporters hope the court will overthrow the viability precedent set in Roe, opening the door for more pre-viability bans.
That is the hope behind Nebraska’s 20-week ban, too, but through a completely different route. If the Supreme Court took up a straight fetal pain ban, ruling that the potential for pain can supersede the previous line of viability, then the new precedent would open up a new avenue for whittling down the timeline for allowing legal abortions. Testimony from abortion opponents in both state and national hearings have shown that they have a their own pro-life experts who will state there is evidence that pain could actually be perceived at earlier and earlier gestational ages. In fact, AUL itself even claims in one study that pain can occur “even as early as 5.5 weeks” — before some women even realize they’re pregnant. Such an extreme restriction is an obvious goal that is already foreshadowed by the introduction of “heartbeat” bans that forbid abortion at a similar point in gestation.
If the court took up a fetal pain bill like Nebraska’s, it would be forced to say whether or not they believe pain perception could be the new abortion limit threshold, and states would then be welcome to roll their bans back accordingly anywhere they have a GOP majority. As the Supreme Court showed in Gonzalez v. Carhart, when science isn’t “settled,” then legislators should be allowed to create laws based on the facts that they believe are true.
You could expect the “5 Week Embryonic Pain Ban” models to be introduced in states like Ohio, Kansas and Texas before the ink could even dry.
The Arizona bill, on the other hand, doesn’t present the same sort of opportunities for roll back as “true” fetal pain ban would. If the court upheld the ban, agreeing that a pregnant person’s health is at greater risk during a later abortion than an abortion prior to 20 weeks gestation, there isn’t much wiggle room for coming back with an earlier ban to “protect her safety” even more down the road.
Even AUL’s own legislation is based on the idea that abortion is “exponentially” more likely to result in death after 20 weeks gestation, therefore reinforcing that prior to that point it is in actuality a very safe procedure. The facts presented affirm that there is little danger at all in the first trimester and cites “one death for every one million abortions at or before eight (8) weeks gestation.”
If the Supreme Court reviewed the Arizona law and ruled on the health aspect, rather than on the pain issue, it would be nearly impossible to build the case for a 6-week abortion ban out of the decision. That’s a fact that has to be giving anti-abortion activists concern.
A review of one of the 20-week bills based off the NRLC model could be the key to unraveling the right to a legal, safe abortion – or at the very least accessing one after you are more than a mere three weeks pregnant. If the Arizona ban is upheld instead, 20 week gestation might just be as far as abortion opponents will be able to go.
Marty is a freelance writer, speaker and activist, and the author of Crow After Roe: How Women’s Health Is the New “Separate But Equal” and How to Change That. Robin’s articles have appeared at Rolling Stone, Bitch Magazine, Ms. Magazine, In These Times, Truth Out, AlterNet, RH Reality Check and other publications.