How Abortion Rights Could Slip Away Under A Republican Senate

Election Day is one week from tomorrow, and as pollsters and pundits have been projecting for months, there is a high possibility that by the time the votes are tallied, we will have a Republican controlled House and Senate.

The question everyone is asking (or should be) is what is on the GOP agenda when it comes to restricting access to abortion and birth control, and do they have the power to make any of it actually happen? The answers are lots of things, and yes they do.

If you want a glimpse of what 2015 will look like when it comes to federal legislation that encumbers reproductive rights, the easiest place to look is the list of bills that already passed the House under Republican control. Some of those priorities have been highly publicized for years – the desire to pass a federal ban on abortions at the point of 20 weeks post fertilization, or 22 weeks gestation, or the goal to end all federal funding for Planned Parenthood as an organization — even for affiliates that don’t offer abortions in their locations. Also high on the list would be a return of a “Blunt” style bill (named after Republican Sen. Roy Blunt of Missouri) allowing all employers, regardless of size or industry, to be allowed to block no co-pay contraceptive coverage in their employee health care plans, which they no doubt feel the Hobby Lobby decision from the Supreme Court would justify.

Some of their other legislative desires have been less obvious, and not so well-covered. Minnesota Republican and Rep. Michele Bachmann last month sponsored a mandatory ultrasound and informed consent bill, which would require any person who performs an abortion to first do an ultrasound and play a fetal or embryonic heart tone, as well as describe the findings to the patient and put the display where the patient can view it. Though she won’t be a member of the next Congress, there are more than enough others to take up her cause.

There’s also the “Every Child is a Blessing Act,” an innocuous sounding bill that actually protects medical professionals from lawsuits from parents who find out after birth that their child had a serious medical anomaly, which may have made the parents consider having an abortion rather than continue the pregnancy. Or the “Parental Notification and Intervention Act,” which puts a four day long waiting period on a teen seeking an abortion in order to provide the notified parent with a period in which he or she can have the minor’s abortion legally blocked in the courts.

Then, of course, there is the “Sanctity of Human Life Act.” That bill not only defines a person as beginning at the moment of fertilized egg and protects that zygote throughout the rest of the pregnancy from anything that could harm it, but attempts to reverse Roe v. Wade in order to send the decision on the legality of abortion back to the states. It even forbids the Supreme Court and district courts from declaring state laws prohibiting or restricting abortion unconstitutional.

These are the types of laws that the House has proposed over the last two years, and that the Senate has ignored, knowing that it can never get such extreme anti-abortion legislation through their chamber. Now, with the Senate preparing to flip into GOP control, that could all finally change.

Senate Minority Leader Mitch McConnell (R- KY) has long promised that should he become Majority Leader, he would make passing a 20-week abortion ban his number-one priority. He explicitly promised the attendees of the National Right to Life Convention in June that bringing a bill to the floor would be high on his agenda.

In comparison to something as extreme as the “Sanctity of Human Life Act,” a 20-week post-fertilization abortion ban may not seem like the most dangerous bill to make it into law. However, the bill provides exceptions only if a victim of sexual assault reports the crime to police prior to the abortion, offers no exceptions for fetuses with anomalies or who are likely to be incapable with life if they are born, allows no exceptions if the pregnant person is suicidal, and will only allow an abortion if the person’s life – not just her health – is in danger if the abortion is not performed.

If the law went into effect, it would almost certainly guarantee that all who are pregnant with a fetus with massive genetic issues would still have to continue the pregnancy and give birth. It would also likely force those whose health is endangered by a pregnancy due to their own physical disorders must continue the pregnancy until she is officially in danger of death. Then, based on the law’s language, have the pregnancy ended “only in the manner that provides the best opportunity for the unborn child to survive,” regardless of if that fetus has advanced to a point where it is likely to be able to live outside the womb.

Even worse, this would be a federal law that may be impossible to reverse. Although 20-week bans have been put into effect in a number of states, few have chosen to challenge it, knowing that an appeal that works its way up to the Supreme Court is a dangerous process. While the court rejected Arizona’s ban, it wasn’t exactly the same as the one waiting in Congress, as it made the cut off two weeks earlier and used a different justification for its prohibition. Other than Idaho, no one has challenged a 20-week post-fertilization abortion ban.

So far, 20-week abortion bans have merely caused a growing burden for those seeking out abortions into the second trimester. With enough planning, resources, time and money, an abortion is difficult, but attainable. A federal ban would cut off all of those options for everyone, leaving providers and lawyers to decide whether the inability for those who are often the most desperate to end a pregnancy is worth the risk of starting a case that, if it does make its way to the Supreme Court, offers the judges a chance to say that viability should no longer be the standard when it comes to allowing the right to terminate.

Instead, it might open the door to the disproven idea of fetal pain, which all reputable medical authorities say does not exist. Unfortunately, a number of medical professionals (some anti-abortion, others not) have had their research used to prop up claims that not only can a fetus feel pain at 20 weeks, but even earlier that that. In one case, an anti-abortion scientist even claims that an 8-week fetus is capable of pain.

When the options are to allow abortion access to end at 22 weeks across the nation, or risk opening up the possibility of states being able to enact bans at as early as 8 weeks, the choice becomes an impossible one for those who believe legal, safe abortion is a right.

If the Republicans take the Senate, there is no doubt a 20 week ban will go up for a vote, likely within the first hundred days. Most anti-abortion, social conservative and Republican action groups have actively supported it, making refusing to vote in favor of it a potential career killer for a GOP senator. While the President would still have the ability to veto the legislation, threats of government shutdown could be enough to make him put the veto pen away.

If Republicans win the Senate, Roe v. Wade is at risk of being overturned, and abortion could go back to being mostly or entirely illegal based on the state in which you try to access it. Even if ban doesn’t make it to the Supreme Court, the GOP has made it clear that their agenda is to regulate and restrict it out of existence, and at the same time limit access to contraception, too.

This can happen, and likely will happen, if women do not show up to the polls to vote.

Robin Marty is a freelance writer, speaker and activist. Her current project, Clinic Stories, focuses on telling the history of legal abortion one clinic at a time. Robin’s articles have appeared at Slate, Cosmopolitan.com, Rolling Stone, Ms. Magazine and other publications.