Even though Roe v. Wade has technically been the law of the land since it was passed in 1973, recent years have seen one bill after another that attempts to rollback abortion access. These bills range from things like the Hyde Amendment, which make it harder for low-income people to afford to procedure, to laws that result in clinic closures, making it harder to find and access a facility to perform it. The most extreme of these bills are called “heartbeat bills,” which outlaw abortion when a heartbeat is detectable, as early as six weeks (which is before many people know they are even pregnant).
Often thought of a “softer” restriction is the 20-week ban, which has now been passed in 16 states. The 20 week bans are often seen as a sort of compromise between abortion opponents and pro-choice advocates, and many people view them as reasonable. In Ohio, Gov. John Kasich vetoed a heartbeat bill only to immediately turn around and sign a 20-week ban. These are also tricky: even though only 1.3% of abortions occur after the 20 week mark, in the case of severe fetal abnormalities, those usually aren’t even detectable until the second trimester, and many people don’t find out about them until their full fetal survey ultrasound, which occurs at 18-20 weeks. So for some women, for instance, who have written essays and given interviews, such bans compound an already-traumatic situation, turning a tragedy into a nightmare.
So yes, the bans are terrible. But did you know that they’re unconstitutional? I didn’t. I knew I didn’t support them, and I knew they were sneaky efforts by GOP lawmakers to restrict abortion access, but I didn’t realize they weren’t even legal. But a new piece at Tonic explores how the GOP is getting around Roe v. Wade, and it explains that these 20 week bans aren’t just a nightmare for folks who need access to abortion, they’re downright unconstitutional: while the ruling does allow states to restrict or ban termination, that restriction is limited until after fetal viability, which is generally defined as after 24 weeks following the last menstrual period (which is how pregnancy progress is measured). Whoa.
So how do anti-choice advocates get around this pesky inconvenience regarding the constitutionality of these bans? By offering “an alternative fact:” that fetuses can feel pain at 20 weeks. Andrea Miller, president of the National Institute for Reproductive Health (NIRH), told Tonic that is “junk science” and “there has been no peer-reviewed documentation that supports [the] theory.” A 2005 study found that fetuses likely don’t feel pain until the third trimester.
This is all bad enough, but with Mike Pence in the White House gleefully casting tie-breaking votes to defund Planned Parenthood, anything could happen—including a national ban. While pro-choice activists have been fighting for years to protect a right to choose, being up against the most powerful group of politicians in the country is looking like a hard battle ahead. But it’s a fight that is literally life and death for many.
I’m talking about the people who have to carry these pregnancies to term, sometimes at the expense of their own life, in both literal and figurative ways.