On March 15, the Senate Judiciary Committee is holding a hearing on two separate bills that would, among other things, impose a federal ban on abortion at or after 20 weeks post-fertilization (equivalent to 22 weeks’ gestation). Both bills would do nothing to advance public health and are instead yet another attempt to politicize women’s health and limit women’s access to abortion care.
The first bill, a 20-week abortion ban misleadingly labeled as the Pain-Capable Unborn Child Protection Act, is premised at least in part on the assertion that fetuses can experience pain starting at 20 weeks post-fertilization—a claim that is not supported by the preponderance of scientific evidence. The bill is patently unconstitutional, since it would prohibit abortion before viability without any exception to preserve a woman’s health. The bill also includes particularly callous and cruel rape and incest exceptions that force rape victims to wait 48 hours and make two visits to see two different providers before having an abortion.
The 20-week abortion ban bill would also impose a little-noticed provision that could be used to target abortion providers. It would require abortion providers to submit annual summaries of abortions provided at or after 20 weeks post-fertilization to the National Center for Health Statistics (NCHS). Requiring physicians to report certain abortions directly to NCHS serves no discernible public health purpose, but rather appears to be part of an ongoing trend to politicize U.S. abortion surveillance.
The bill further requires NCHS to issue annual reports of all reported abortions, with patients’ identifying information protected. However, given ongoing threats against and harassment of providers, it is alarming that the bill says nothing about protecting physician and provider information and confidentiality. This is in clear contrast to many state policies, as 34 of the 46 states with abortion reporting requirements specifically protect the confidentiality of providers.
The second proposed bill to be taken up at the Senate Judiciary Committee hearing, The Born-Alive Abortion Survivors Protection Act, is redundant and harmful. Existing legislation, The Born Alive Infants Protection Act of 2002, already requires that a fetus that survives an abortion is entitled to emergency medical care. Critically, the current law does so without undermining the rights protected under Roe v. Wade. In contrast, The Born-Alive Abortion Survivors Protection Act would not only roll-back this carefully crafted bipartisan agreement reached in 2002. It would also add new criminal penalties against doctors and clinicians as a scare tactics that serves the sole purpose of scaring women away from seeking safe, legal abortion.
Taken together, the proposed legislation, if enacted, would constitute a significant failure of public health policy. If Congress were serious about reducing the need for later abortion it should make abortion care more accessible earlier in pregnancy, while also putting in place policies and programs to help women avoid unintended pregnancy in the first place.
Indeed, it is the cumulative effect of the tidal wave of abortion restrictions in large swaths of the country that may in fact push many women into having abortions later than they would have otherwise wanted. Congress should remove the numerous legal obstacles that delay women’s ability to access abortion care in a timely manner, such as waiting periods and bans on public and private insurance coverage for abortion.
Also, new evidence recently published in the New England Journal of Medicine shows that a steep drop in unintended pregnancy is behind the 2008-2011 decline in U.S. abortion rates. This trend is most plausibly explained by more and better contraceptive use, especially use of highly effective contraceptive methods. This new evidence makes a compelling case that, rather than cutting or otherwise obstructing access to contraceptive services, Congress should augment funding and support for these services to help women avoid unintended pregnancy in the first place.
Boonstra is the Guttmacher Institute’s director of Public Policy. She is responsible for promoting the Institute’s sexual and reproductive health agenda in federal law and policy.