An exclusive excerpt from the newly updated ‘The End of Roe v. Wade’ reflects on this past year, which has seen previability bans pass in state after state.
If the beginning of the end of Roe v. Wade can be traced back to Nebraska and the “Pain-Capable Unborn Child Protection Act” in 2010, it is only fitting that almost ten years later, the Supreme Court may finally be poised to finish the work the Cornhusker State started by taking up another previability abortion ban, this time one billed as a 20-week “fetal pain” abortion ban.
The spring of 2019 saw an onslaught of extreme previability abortion bans that ranged from eight weeks after the last menstrual period (Missouri—passed) to the moment of fertilization (Alabama—passed), as well as new punishments like life in prison for abortion providers (Alabama—passed), proposed jail time for those who helped a person leave one state to obtain legal abortion care in another (Georgia—passed), even the death penalty for a pregnant person who terminates a pregnancy (Texas—failed). These bills rightfully grabbed the media spotlight, drawing almost universal criticism. But none will ever be enforced, at least not until Roe is actually overturned. Meanwhile, the low-key, incremental, no-frills ban on abortion at 20 weeks post-fertilization continues to plod along under the radar, looking less and less threatening every day. Which is exactly the point of the legislation.
It’s that very act of goalpost shifting from the right that could allow Senate Bill 160—the “Pain-Capable Unborn Child Protection Act”—to sail right through Congress without much fuss or fanfare. After all, the difference in 22 weeks last menstrual period and the very lowest end of the cusp of viability is little more than a week’s difference at most. Does blocking this sort of ban really even matter?
Of course, the answer is yes. Located within the legislation is the anti-abortion movement’s end game. First, it lists varying embryonic and fetal development points, and claims that at those points, a fetus or embryo can “feel” pain. The development points range from eight weeks to 20 weeks, with the clear intention of driving the standard for judging these kinds of restrictions away from viability and toward an ever-diminishing gestational point. The idea is to get the Supreme Court to finally move away from viability as a bright line constitutional test. Should the Court take the bait, what started as a 20-week fetal pain ban will soon become an eight-week ban, and so on and so on as states press to ban abortion far earlier than ever before, upending the trimester framework of Roe and the undue burden standard of Casey entirely.
How early can this go? The answer is in the federal bill. “After 8 weeks fertilization, the unborn child responds to touch,” claims S.160, introduced on January 16, 2019 by South Carolina Republican Senator Lindsey Graham. And if ten weeks after last menstrual period wasn’t early enough, anti-abortion policy organization the Charlotte Lozier Institute (an arm of the Susan B. Anthony List) offers research claiming that the “basic anatomical organization of the human nervous system is established by 6 weeks. The earliest neurons in the cortical brain (the part responsible for thinking, memory, and other higher functions) are established starting at 6 weeks,” suggesting that even earlier thresholds for banning abortion that have been rejected by the federal courts as outliers from very conservative states could be on the way back, mainstreamed by Republicans in Congress.
But first, a federal bill needs to make it to the Supreme Court, and on this point abortion opponents are making progress. On April 9, 2019, Senator Graham chaired the Senate hearing for S. 160. It was the first major movement on a 20-week ban at the federal level since Republican women killed the bill in 2015 because it didn’t have a well-defined rape exception. Graham didn’t let the opportunity go to waste, jumping right in with scientifically suspect claims about fetal pain, saying that “if medical science tells us the baby is well developed at five months, can feel pain … then we should have restrictions on abortion. You can only imagine the pain that comes from dismemberment.”
Medical science says no such thing, of course. The American College of Obstetricians and Gynecologists (ACOG) states definitively that a fetus is incapable of feeling pain prior to the third trimester. The only ones disputing this fact are the doctors at AAPLOG—the American Academy of Pro-Life Obstetricians and Gynecologists, a 4000-member offshoot of ACOG that is strictly anti-abortion (ACOG boasts an overall membership of about 58,000).
But because only a single medical representative was present on the five-person panel testifying on SB 160, it was AAPLOG’s message—and not the one backed by the overwhelming majority of the scientific population—that was advanced in the hearing. “There are small human beings in the womb who are being pulled apart in pieces, or having their skin burned off, or partially delivered through their mothers’ vagina and having their brains pierced and sucked out through a suction catheter,” testified Donna Harrison, the executive director of AAPLOG in support of Graham’s bill. “The ‘Pain-Capable Unborn Child Protection Act’ will protect unborn children in the United States from being killed in brutal ways.”
Harrison may have been called as a witness in support of the Pain-Capable Unborn Child Protection Act, but it was clear that like the bill itself, the goal of her testimony was to advocate for even more extreme abortion restrictions. Harrison testified that most later gestation abortions are done by either D&E, “partial birth abortion” (Intact D&E) or “saline abortions,” despite the fact that intact D&E has already been banned federally since 2007, and saline abortions almost completely disappeared two decades ago once safer, more efficient means of terminating a pregnancy were discovered. Yet Harrison included both of these now historic techniques to reiterate her original argument—that D&E is a “barbaric” procedure that dehumanizes and causes “pain” to a developing fetus.
For the final two minutes of her testimony, Harrison simply recited the same detailed verbal depiction of a D&E abortion that her colleague, Dr. Anthony Levantino, provides when he testifies for legislatures. “If veterinarians ripped apart living dogs and cats to kill them in the same way that living human children are ripped apart in the D&E procedure, the outcry would be deafening,” she concluded.
Much like the “Abortion Dismemberment Ban Act of 2019”—the federal D&E ban proposed by Senators Mike Rounds and James Lankford—S. 160 uses graphic words and imagery to try and sway public opinion on abortion while also advancing restrictions that can be pushed toward a favorable Supreme Court. It isn’t a coincidence that the anti-abortion movement’s greatest success at the federal level has been with procedural bans, both from a legal and public relations standpoint. And now, if all goes according to the right’s plan, the ruling in Carhart v. Gonzales that first opened the door to previability procedure bans won’t just provide the language for how to testify in support of restrictions in the most graphic way possible—it will have also given anti-abortion activists the building blocks to reduce, and eventually close entirely, the gestational window for terminating a pregnancy.
Can a 20-week ban pass on a federal level? It certainly seems like a long shot, as it would require an anti-abortion majority in the House, at least 60 senators who oppose abortion, and a Republican in the White House. As of this moment only one of these criteria have been met, and getting them all in line at the same time may (thankfully) be utterly impossible for the right.
But after nearly a decade where we have seen approximately 400 pieces of individual state-based abortion restrictions which have grown even more extreme since the election of President Donald Trump and the seating of two new conservative justices, a federal 20-week ban may no longer be as far-fetched as it once was. How long will it be before a handful of Democrats decide to use their votes on this bill or a later version as a bargaining chip for securing social security for another decade, or to win someone over to the New Green Deal, for example? After all, abortion became a negotiating point in the battle to pass the Affordable Care Act during the Obama administration. Can we truly expect our supposed allies in Congress to stand strong and protect abortion if it’s tacked onto funding for schools or a Medicaid expansion? Or what if voting for it could prevent a government shutdown? Any of these scenarios could come to play within the next few years, and then we really will see the end of Roe v. Wade. And then, after nearly 50 years, the right finally will have won the abortion battle.
From The End of Roe v. Wade, by Robin Marty and Jessica Mason Pielko. Excerpt provided courtesy of lg publishing.
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