The 20-week abortion ban is poised to get its biggest moment yet when Sen. Lindsey Graham (R-SC) rolls out his own federal version Thursday.
While Graham’s bill stands little chance of overcoming an expected Democratic filibuster in the Senate, it shines a light on a measure already on track to be a major 2016 issue and which abortion rights proponents fear looks reasonable enough to voters but is in fact a trojan horse with major legal implications.
While the bans only apply to a relatively small portion of abortions, they are part of a much broader, long-term legal strategy among anti-abortion activists to push the Supreme Court into chipping away at some of the protections established in Roe v. Wade.
“It’s a really dangerous trend. They look good to people, they make politicians feel good,” said Jessie Hill, a professor at Case Western Reserve University School of Law. “There’s not a lot of sympathy for later abortion or people don’t get the need for them.”
Though they are rare, late-term abortions are crucial for women who discover fetal abnormalities late into their pregnancies, abortion rights activists say, and are even more necessary given other limits on abortion access are making it more difficult for women to seek the procedure.
Aside from the limited number of abortions the measures ban, there is the chance that the law will be challenged all the way up to the Supreme Court, which, with its conservative bent, will be more inclined to uphold the restriction than it has been in the past and perhaps establish a new standard that gives states more legal room to limit abortion.
Sen. Lindsey Graham (R-SC)
“We do think these kinds of cases and these kind of laws will ultimately lead to the erosion and outright reversal of Roe v. Wade,” said Ovide Lamontagne, general counsel for Americans United for Life, which is active in pushing 20-week-ban legislation. “This is the kind of law that could lead the court to say, ‘It is time for us to get out of this business.'”
In the last five years, 14 states have enacted 20-week abortion bans, according to the Guttmacher Institute, and just this year, lawmakers in 10 others introduced their own versions. Senate Majority Leader Mitch McConnell (R-KY) has already promised a debate on Graham’s version.
“This legislation is really putting everyone on the offensive and we are already seeing pro-life candidates go on the offensive,” said Mallory Quigley, a spokeswoman for the anti-abortion group Susan B. Anthony List.
All of the top 2016 GOP contenders have pledged their support of the measure, and have used the 20-week ban as a way to paint Democrats as the extremists on the abortion issue. Wisconsin Gov. Scott Walker (R) is gearing up to sign one of the strictest versions in the country. It provides no exemptions for rape and incest. Concerns among some GOP women in the House about a too-narrow rape exception nearly sunk the federal legislation in the House.
Wisconsin Gov. Scott Walker (R)
Banning abortions after 20 weeks post-fertilization — or about 22 weeks after the last missed period — is based on the notion that at that point fetuses can begin to feel pain. Numerous scientific studies have suggested this not to be the case, but a few doctors have testified in favor of the theory and supporters also use emotional arguments — such as the fact that parents often play music for their fetuses at that point — to make their case.
Science aside, Republicans see the issue as a political win. Though the public has remained consistently split on abortion in general, Americans are much warmer on banning abortions after 20 weeks. Sixty percent supported the measure, according to a November Quinnipiac poll, including nearly half of Democrats. Abortion rights proponents point out that that support shrinks in the case of fetal abnormalities — a common reason late-term abortions are sought — which are not typically exempted in the measures.
More frightening to pro-abortion rights activists than the political momentum growing behind the measures is their impact on the legal protections for a woman’s right to an abortion. The Supreme Court’s decision in Roe v. Wade established that women have the right to abortion before their fetuses are viable and abortion rights supporters say 20-week bans are unconstitutional because they ban abortions before that point, commonly held to be 24-28 weeks.
On that basis, the liberal-leaning U.S. Ninth Circuit of Appeals has struck down 20-week bans in Arizona (in a decision that the Supreme Court declined to review) and in Idaho. Georgia’s version also remains blocked by courts on state constitutional grounds. However, major abortions rights groups have been slow to challenge the bans in other states — in part because in some places there are not even providers who offer late-term abortions — but also, according to outside experts, because they could create the conditions that make it more likely the Supreme Court would take up the case.
Justice Anthony Kennedy
“You can see that a lot of the 20-week bans have not been challenged in federal court,” said David Cohen, a law professor at Drexel University. “That’s because of [Justice Anthony] Kennedy and that’s because of the concern in the Supreme Court that things can happen with this current line up of judges.”
Kennedy has been identified as key player in anti-abortion activists’ favor, as, since signing on to an important decision that upheld a woman’s right to an abortion, he has been sympathetic to many other abortion restrictions and written particularly emotionally in support of the partial birth abortion ban.
”Restrictions like the 20-week ban are aimed Kennedy,” said Caitlin Borgmann, a City University of New York School of Law professor who has litigated reproductive rights cases. “They’re purely about getting Justice Kennedy to break down the standard and change fundamental pieces of it.”
The 20-week ban is one of a slew of abortion restrictions to have gained traction at the state-level in recent years. Between 2011-2013, more restrictions were enacted by states than in the entire decade prior, according to a report by the Guttmacher Institute. Many have been successfully challenged in courts, but blocking them could be more difficult in the future if the Supreme Court gives states more legal leeway to limit abortion access.
“If the court buys into this whole fetal pain story, and says, well, we drew the line at viability but here, there is this new evidence about fetal pain that indicates that fetuses feel pain at 20 weeks — which is not true, but assuming that they defer to legislatures on that, to the evidence that is out there — that’s a compelling interest that overrides the women’s rights,” Hill, the Case Western University professor, said. “That could open the floodgates to all kinds of potential state interests that anyone can come up with to push the line back further and further and further.”