When in a pregnancy can a state ban abortion? For years, the answer has been clear: after viability. When a fetus can survive on its own outside the womb, the thinking has gone, a state can assert its interest in protecting the baby.
Several states— Alabama, Georgia, Louisiana, Idaho, Indiana, Kansas, Nebraska, and Oklahoma—have recently challenged that legal consensus by passing laws that bar abortion beginning at 20 or 22 weeks. (The general threshold for viability among medical experts is still 24 weeks, or at the very outside, 23 weeks.) One of those bans, in Arizona, is the subject of a hearing today in a case before the U.S. Court of Appeals for the 9th Circuit. It’s an important test: a reminder, just before Election Day, of the impact of the wave of state restrictions on abortion that have passed since Republican electoral gains in 2010, and of how the ground will shift under women’s feet if the courts let these law stands.
Arizona bans abortion after 20 weeks except in the event of a “medical emergency,” defined narrowly as a condition that necessitates “immediate abortion of the pregnancy to avoid death” or “substantial and irreversible impairment of a major bodily function.” Doctors who violate the law can go to prison for up to six months, lose their medical licenses, and be sued by their patients and the fathers and maternal grandparents of the “unborn child.” In other words, the state means business.
And so we are back in the sad world of late-term abortions. Why would anyone choose to end a pregnancy in the middle of her fifth month? First of all, let’s be clear, the percentage of abortions performed at this stage is low: 1.9 percent between 18 and 20 weeks, and another 1.3 percent after 21 weeks. In national numbers, that’s about 11,600 and about 8,000, respectively. There must be women in this group who are in denial, even irresponsibly so. But there are many women who grieve deeply over terminating at a later stage. One of the doctors challenging the law said that 70 percent of his patients who choose abortion at 20 weeks do so because of “serious or lethal fetal abnormality.” These women often very much want to be pregnant and to have a baby, and they find themselves ending a life instead of beginning one only because the alternative is even bleaker. Arizona seems unconcerned about limiting the choices of all women so that it can curb the behavior of a few.
The doctors who are challenging Arizona’s law, through their lawyers, lay out the birth defects that lead women to give up wanted pregnancies: malformation or absence of the brain or kidneys, severe heart defects, or excess fluid that leads to serious brain damage. When women think they are experiencing a normal pregnancy, structural abnormalities like these—as opposed to chromosomal problems—often aren’t detected until the standard 18-week ultrasound. At that point, there are often follow-up appointments and consultations to be scheduled, not to mention heart-wrenching thinking to be done. Do we really want a state to take it upon itself to rush women through this process, against the better judgment of their doctors? “By the time a diagnosis is confirmed by a specialist capable of diagnosing these anomalies, the pregnancy has often progressed beyond 20 weeks,” the American College of Obstetrics and Gynecologists explains in its brief supporting the doctors who have challenged Arizona’s law. “Perhaps most importantly, however, given that almost 60 percent of Arizona women are obese, there are many patients in whom a detailed ultrasound examination will not reveal structural anomalies in the fetus until those anomalies become more pronounced, and thus visible, later in the pregnancy—often after 20 weeks.”
Then there are the health crises mothers confront mid-pregnancy. ACOG provides an upsetting list, including heart conditions, cancer, lupus, and diabetes. The problem with allowing for abortions only to avert death or the irreversible impairment of a major bodily function, ACOG explains, is that “to require a physician to postpone care until that point is to put the patient’s health in serious jeopardy and to compromise the physician’s ethical duty to the patient.”
Arizona justified its 20-week ban with two arguments: The state says it is protecting the fetus from pain and protecting the health of women. As district court Judge James Teilborg put it, in upholding Arizona’s ban, some doctors say the fetus can feel pain by 20 weeks because “when provoked by painful stimuli, such as a needle, the child reacts, as measured by increases in the child’s stress hormones, heart rate, and blood pressure.” Somehow, Judge Teilborg, who is a Clinton appointee, found that this claim is “undisputed.” In fact, the timing of when the fetus feels pain is very much in dispute—ACOG says “there is no credible scientific evidence of pre-viability fetal pain perception.” This is based on the conclusion of experts at the University of California,-San Francisco, published in 2005 in the Journal of the American Medical Association, by the Royal College of Obstetricians and Gynecologists in the United Kingdom in 2010, and a group of Italian researchers at the University of Siena in 2012. The first two reviews put the fetal pain threshold beyond 24 weeks—past the time of viability, when states clearly can outlaw abortion. The Italian review doesn’t exclude the possibility of fetal pain in the second trimester but says that most studies show it appearing in the third trimester. Here’s why: “The connections necessary to transmit signals from peripheral sensory nerves to the brain, as well as the brain structures necessary to process those signals, do not develop until at least 24 weeks of gestation,” ACOG states. Arizona has on its side the affidavits of two anesthesiologists.
It’s a move abortion opponents make regularly—when the weight of the science doesn’t support their arguments, they rely on doctors who are very much in the minority to claim it does anyway. Charmaine Yoest, the head of Americans United for Life, which helped draft the Arizona law, told me in a different context that the scientific establishment “is under the control of the abortion lobby.”
AUL is behind the language in Arizona’s law stating that second trimester abortions harm the women who decide to have them. ACOG shreds this argument, too: “Medical evidence overwhelmingly demonstrates that abortion imposes far lower risks on a woman’s health than does carrying a pregnancy to term and giving birth.” It’s true that an abortion at 20 weeks can carry more risk than an abortion in the first trimester. But that’s not the relevant comparison, since it’s not the choice a woman at the later stage faces.
There is an argument for restricting access to abortion after 20 weeks, which the historian David Garrow has made: Maybe women who want second trimester abortions should have to go before a hospital approval committee, in recognition that the state has a stronger interest in protecting the life of a fetus as it further develops. My colleague William Saletan has proposed a tradeoff: “restrictions on second-trimester abortions in exchange for pro-life support of contraception.” But none of this is on offer in Arizona—the state has only issued a ban. The Arizona law defies the spirit of Roe v. Wade and the letter of Planned Parenthood v. Casey, the Supreme Court’s 1992 affirmation of the core of Roe, which allows the state to regulate abortion before viability but to bar it only after that threshold has passed.
For that reason, the 9th Circuit will probably strike down Arizona’s 20-week ban as unconstitutional. What happens after that, though, is up to the Supreme Court. Which is why I mention Election Day: The future of the court, and of legal abortion, lies with the next president.