Today, Senate Republicans are expected to vote on a bill they call “The Pain-Capable Unborn Child Protection Act,” which would make abortion illegal, in most cases, at around 20 weeks post-fertilization. In his address to the anti-abortion March for Life rally earlier this month, President Trump called on the Senate to pass the legislation “and send it to my desk for signing.” It’s highly unlikely to make it there — the bill, led by GOP senator Lindsey Graham, needs 60 votes to advance in a Senate with 51 Republicans.
But even a failed vote on anti-abortion legislation could help Republicans appeal to evangelical voters in an election year, a drum the GOP has been beating for years. And similar bans have already passed at the state level, making abortion access disturbingly dependent on geography. So, why are Republicans obsessed with the 20-week mark? And why are medical experts concerned? Here’s what you should know.
First, why the focus on 20 weeks?
Some GOP lawmakers claim that at 20 weeks post-fertilization, a fetus can feel pain — and the latest bill asserts there is “substantial evidence” to back this up. But the majority of scientific literature says otherwise. “That data definitely doesn’t exist,” says Jamila Perritt, M.D., a board-certified OB/GYN and fellow with Physicians for Reproductive Health. “The best medical evidence we have shows there’s not pain perception until many weeks later.”
On its fact sheet about fetal pain, which cites credible, evidence-based research, the American College of Obstetricians and Gynecologists (ACOG) states that the connections and brain structures needed to transmit and process nerve signals aren’t developed by 20 weeks, and “because it lacks these connections, the fetus does not even have the biological capacity to perceive pain until at least 24 weeks gestation.”
The GOP’s bill, however, claims that a fetus’s response to stimuli at 20 weeks or before is proof it feels pain. Not so, according to ACOG, which explains that pain is an “emotional and psychological response” that doesn’t develop until the third trimester (28 weeks), and “fetal movement is not an indication that a fetus can feel pain.”
Then why is it called the “Pain-Capable Unborn Child Protection Act”?
Language around abortion has long been politicized, and this is no exception. Anti-abortion groups and lawmakers often refer to fetuses as the “unborn” in an attempt to assign them personhood and shift the focus from women’s rights. It’s a strategy that has worked before: In 2003, former president George W. Bush signed the “Partial Birth Abortion Ban Act,” which made dilation and extraction, or “D&X” — a safe abortion method performed around the 20-week mark — illegal.
The misleading term partial birth abortion was coined by the National Right to Life Committee and was not used by the medical community, but for lawmakers looking to restrict abortion access, reframing the issue around birth was a lot more effective. And the same can be said now of the Senate’s bill. A “child protection act” is, at least by name, an easier sell than an abortion ban that puts women at risk.
How long have Republicans been pushing for a 20-week ban?
Several years now. Graham first introduced the bill in 2013 and has continued to pursue it, and House Republicans have passed similar legislation in that time frame. But none of those efforts yielded actionable results, and while President Barack Obama was in the White House, Democrats could take solace knowing he would never sign such a bill into law. With Trump and Vice-President Mike Pence in office, that backstop is gone.
Is it common for women to have an abortion at 20 weeks or later?
No. Only about one percent of abortions in the U.S. occur after 20 weeks from a woman’s last menstrual period, and less than 4 percent occur between 16 and 20 weeks, according to the Guttmacher Institute. What’s more, almost 90 percent of abortions take place in the first 12 weeks since a woman’s last period, with two-thirds occurring in the first eight weeks.
Why might a second-trimester abortion be necessary?
There are many reasons a woman might need to delay the procedure — from having to raise enough funds (insurance coverage for abortion is restricted in some states) to having to clear medically unnecessary hurdles (such as mandatory waiting periods, which can require multiple trips to the clinic, resulting in higher travel costs and more time off work).
But of the small number of abortions that occur later in a pregnancy, a previously undetected fetal abnormality is a common reason for termination. As Dr. Perritt explains, “The ultrasound that the majority of women get 18 to 20 weeks into their pregnancy is one that looks at structural abnormalities — structures with the heart, or with any internal organs. Sometimes, these abnormalities can be diagnosed early, but other times it’s not until the 20-week mark that we detect them.” It’s worth noting that these are often wanted pregnancies with unfortunate outcomes — a fact some Republicans dismiss in favor of the more damning narrative that women who seek abortion later in pregnancy are simply irresponsible.
How is a pregnancy terminated at 20 weeks?
The procedure is called dilation and evacuation, or “D&E.” First, the cervix is numbed, then softened and stretched. A few hours to a day later, the pregnancy tissue is removed in portions using medical tools. (A shot can be injected into the woman’s abdomen beforehand, to stop the fetal heartbeat.) Emptying the uterus takes less than half an hour (sometimes just ten minutes), and pain meds are prescribed to help with any cramping or discomfort afterward.
Is the procedure dangerous?
The risk of complications during a second-trimester abortion is less than 0.1 percent, according to ACOG. “A D&E is one of the safest medical procedures that’s performed in the country,” says Dr. Perritt.
What would a 20-week abortion ban mean, from a legal perspective?
For women, the ban mostly comes down to access in this case: Anti-abortion lawmakers know that if they can block providers from performing the procedure, women will have fewer pathways to obtain a legal abortion. But safety wise, this is a flawed strategy. A study published in 2016 found that abortion rates in countries where the procedure is illegal are on par with countries where it’s allowed, suggesting that women will turn to less safe methods if necessary.
The current Senate bill seeks to punish abortion providers with up to five years in prison for performing the procedure outside of its guidelines. Haywood L. Brown, M.D., president of ACOG, expressed in a news release that the wording of the bill is particularly troubling, because the line between legal and illegal abortion is murkily defined by the “probable post-fertilization age” of a fetus. He says that this language “is not medically or clinically meaningful” and “creates ambiguity that would leave abortion providers vulnerable to unwarranted punishment.” Typically, doctors use the date of the woman’s last menstrual period to indicate how far along she is.
Does a ban like this already exist?
Yes, at the state level. Currently, there are 17 states that prohibit abortion at roughly 20 weeks post-fertilization, according to the Guttmacher Institute. While there are generally exceptions in cases where the life or health of the pregnant woman is at risk, nine states require a second physician to confirm that the abortion is medically necessary — which goes against a decades-old Supreme Court requirement that says states can’t require a separate doctor to confirm if a woman’s life or health is at risk, and is therefore unconstitutional.