About that “sensible” 20 week abortion ban the Senate tried to pass this week


Crossposted from DemocraticDiva.com


Anti-choicers like to tout the popularity of some of their positions and one of those that they do frequently is that of the 20 week ban on abortions. They have relentlessly and ingeniously painted procedures at that stage as being done mostly on flighty women who, midpoint in pregnancy or later, callously decide to dispatch with the inconvenient fetus. It seems to have worked. “I’m not even a sanctity-of-life guy,” a local alternative weekly columnist told me on Facebook a while back, “but it seems ghoulish to me to wait that long.” Comments like that amply illustrate how anti-choicers deftly wove their narrative about women who abort after the first trimester into existing negative views on women’s trustworthiness and mental and moral competency in the larger culture.

Because that perception about abortion has taken root in the general public and especially with many journalists, it is difficult for pro-choicers to counter it with facts and nuance. The reality is that there are many reasons that women don’t get abortions prior to the twentieth week of pregnancy and ideally in the first trimester (which is up to 13 weeks and when the most people support abortion on demand). They include things like geographical barriers, lack of funds, intimate partner violence, trauma, and, of course, health problems. Many fetal abnormalities are detected at weeks 18 to 20, and lead some patients to opt for termination. Basically, it’s a lot more complicated than the simplistic “damn, don’t wait so long, lady!” truism would have you believe.

But scant few of the aforementioned circumstances even warrant an exclusion from the 20 week ban that almost passed the US Senate on Tuesday (got a majority of votes but failed on cloture). There are supposed exceptions for rape and the life and health of the woman:

Requires the physician to first determine the probable post-fertilization age of the unborn child, or reasonably rely upon such a determination made by another physician, by making inquiries of the pregnant woman and performing such medical examinations and tests as a reasonably prudent physician would consider necessary.

Prohibits an abortion from being performed if the probable post-fertilization age of the unborn child is 20 weeks or greater, except: (1) where necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, illness, or injury, excluding psychological or emotional conditions; (2) where the pregnancy is the result of rape against an adult woman and, at least 48 hours prior to the abortion, such woman has obtained counseling for the rape or medical treatment for the rape or an injury related to the rape; or (3) where the pregnancy is the result of rape or incest against a minor and the rape or incest has been reported prior to the abortion to a law enforcement agency or a government agency legally authorized to act on reports of child abuse. Requires the physician, prior to performing such an abortion, to place appropriate documentation in the patient’s medical file of the receipt of such medical treatment or counseling or of the reporting of such rape or incest.

Looks like there are some onerous hurdles there to getting those precious exceptions. How onerous? Well:

Permits a physician to terminate a pregnancy under such an exception only in the manner that provides the best opportunity for the unborn child to survive. Requires a physician performing an abortion under an exception provided by this Act, if (in reasonable medical judgement) the pain-capable unborn child has the potential to survive outside the womb, to ensure that a second physician trained in neonatal resuscitation is present and prepared to provide care to the child. Makes such requirements and the requirement to obtain an informed consent form inapplicable if compliance, in reasonable medical judgment, would pose a greater risk of: (1) the death of the pregnant woman; or (2) the substantial and irreversible physical impairment of a major bodily function, excluding psychological or emotional conditions, of the pregnant woman.

Requires, when a physician performs or attempts an abortion in accordance with this Act and the child is born alive, that:

any health care practitioner present at the time humanely exercise the same professional skill, care, and diligence to preserve the life and health of the child as would be exercised for a child born alive at the same gestational age in the course of a natural birth;
the child born alive be immediately transported and admitted to a hospital; and
a health care practitioner or any employee of a hospital, a physician’s office, or an abortion clinic who has knowledge of a failure to comply with these requirements immediately report the failure to an appropriate state or federal law enforcement agency.

Requires the physician who intends to perform an abortion under one of this Act’s exceptions to first obtain a signed informed consent authorization form, which shall be presented in person by the physician and which shall consist of:

a statement by the physician indicating the probable post-fertilization age of the pain-capable unborn child;
a statement that federal law allows an abortion after 20 weeks fetal age only if the mother’s life is endangered by a physical disorder, illness, or injury when the pregnancy was the result of rape or incest against a minor;
a statement that the abortion must be performed by the method most likely to allow the child to be born alive unless this would cause significant risk to the mother;
a statement that in any case in which an abortion procedure results in a child born alive, federal law requires that child to be given every form of medical assistance that is provided to children spontaneously born prematurely, including transportation and admittance to a hospital;
a statement that these requirements are binding upon the physician and all other medical personnel who are subject to criminal and civil penalties and that a woman on whom an abortion has been performed may take civil action if these requirements are not followed; and
affirmation that each signer has filled out the informed consent form to the best of their knowledge and understands the information contained in the form.

Fulfilling those requirements shouldn’t take long at all while you are hemorrhaging from life-threatening pregnancy complications in the ER. Note that if a major body organ is imperiled, you may also qualify for one of those lucky duck exceptions but, ladies, know that Republican lawmakers are not here for your “psychological or emotional conditions” (who do you think you are, a white guy who went on a shooting spree or something?). Rape victims will undoubtedly find the law enforcement reporting and counseling requirements super easy to comply with as well, given the well-known deference rape victims are shown by authority figures. Have we mentioned that there is no exception for fetal anomalies, no matter how severe? Yeah well, that’s what you get for waiting so long, feckless floozies!

And then there’s the way it is impressed upon your doctor that s/he is subject to massive criminal and civil penalties, including by you, which I’m sure will in no way cause health care providers to be fearful of giving you abortion care.

So there’s your “reasonable” 20 week abortion restriction. Here’s how Jill Stanek, a prominent anti-abortion figure who was instrumental in crafting the bill, gleefully described its provisions:

In other words, the Pain Capable Ban protects potentially viable babies.

The added bill language specifies that pregnancy terminations must be committed in a way that “provides the best opportunity” for the preborn baby to survive.

This means the abortionist cannot kill the baby ahead of time by injecting him or her with a medication to stop the heart.

It also requires that a second physician trained in neonatal resuscitation be present to care for the baby, and that babies born alive be transported to a hospital.

Additionally, there is the “call the cops or wear the cuffs” provision, making it a federal offense if employees/doctors witnessing an abortionist’s failure to provide medical care do not report this to police.

There is also a required informed consent form that includes the age of the child, a description of the law an explanation that if the baby is born alive, s/he will be given medical assistance and transported to a hospital, and information about the woman’s right to sue if these protections are not followed.

Finally, the aborting mother is empowered with the right to sue her abortionist if s/he fails to comply with the law. Parents of minors may also sue.

Given these confines, I cannot imagine any abortionist daring to commit late-term abortions. And what second physician would agree to help?

If a mother’s life is truly endangered, and her obviously wanted baby (otherwise she would have aborted much earlier) is potentially viable, it would be abnormal to say the least for her to want her baby killed rather than saved.

The end result, if and when this bill is enacted into law, will be an end to abortions past 20 weeks in the U.S.

Yeah, it’s maybe not the greatest idea to put public health policy and criminal law governing abortion into the hands of people who think abortion is never medically necessary. Even if you are convinced that an abortion at 20 weeks is usually a “ghoulish” act committed by an irresponsible slut.


  1. One unusal but not rare condition that where a woman might ask for termination is if the child has inherited a form of polycystic kidney disease thst will cause the child to die within hours to days of birth. This condition is often not diagnosed until well after 20 weeks sometimes as late as 26 or even 30 weeks. The woman is then forced to carry to term a child that is doomed from the beginning. No amount of counseling can get the woman or the father over that tragic loss.

    Another situation is where the fetus dies in utero, often well after 20 weeks. It immediately begins to decompose inside the woman and yet the woman may continue to carry even though the dead tissue inside her is turning into a bacterial toxin factory. Without immediate abortion the woman will die of a fulminating infection. This kind of infection spreads like wildfire, often even with all kinds of antibiotics it will kill her. ANY delay can kill her. There was a young woman who died of this in Ireland despite her husband begging the authorities at the hospital to send his wife to England where she could have had the dead tissue removed. They refused because they could still hear a heartbeat (not uncommon) and abortion was illegal in Ireland.

    Anencephaly and hydrocephalus are conditions where the fetus fails to develop a brain and develops an enlarged brain respectively. In hydrocephaly the skull often cannot pass through the birth canal. Nothing will save an anencephalic baby, they all die. Hydrocephalus is a condition where the brain swells because cerebro-spinal fluid can’t circulate properly. The prognosis is extremely poor for hydrocephalic fetuses.. Should they survive after being born often other abnormalities are discovered. After a year very few are still alive. These babies are detected on sonogram. Sonagrams are commonly done sometime between 16 and 24 weeks, sometimes after because of scheduling problems. If you can’t get one done because of scheduling at the right time and learn after the window to terminate you are stuck with being forced to bear a child who will die.

    Many rare conditions are not detected until well after 20 weeks.

    Incest is terrible. People don’t like to hear that it happens but it does. For children who are raped by a family member they often do not report the abuse until such time as a pregnancy cannot be hidden — well after the 20 week deadline. If that family member is also a member of the police or government they simply won’t report they may never report the abuse. Abortion services need to be available and anonymous for these children. They can’t go before a judge. It is too traumatic.

    There are so many gray areas, so many exceptions, so many reasons why a woman or girl and her doctor should be allowed to make decisions related to their health, their bodies, without government interference. All doctors should be allowed and encouraged to prescribe pharmaceutical pregnancy termination, why is Planned Parenthood the only place where women can get this vital service? All surgeons should be trained and able to perform safe mid and late term abortions. All hospitals should be required to permit the procedure, yes even Catholic ones, unless there is another hospital that can provide that service nearby AND the patient is able to go to that hospital. These services are HEALTH services. Without them all women have unequal health care compared to men. Thank GOD for Planned Parenthood. But if doctors really want to provide health care they need to stand up and provide it!

    It is absurd and hypocritical that the “small government” Republicans and conservative Libertarians want “big government” interference in the lives of only half of the population of the U.S., creating an under-class consisting of one gender only.

    If you think that these people, who write these bills, will stop at abortion, think again. The same people pushing these draconian bills also want to restrict contraception. All you have to do is look at the Hobby Lobby case.

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