The Pain-Capable Unborn Child Protection Act, passed 228-196 by the House of Representatives Tuesday, resulted in an immediate firestorm of critical hyperbole. President Obama’s Organizing for Action asserted that the bill is one of the “most unbelievable, unconstitutional attacks on women’s health in a long time.”
In short, the bill (which stands no chance of becoming law per the White House’s veto threat) attempts to ban abortions after the 20th week of pregnancy, with limited exceptions.
Here are three things every American should know about the proposed law:
1) The bill is not as sweeping as critics allege
According to the Guttmacher Institute, in 2009, 15,600 of the 1.2 million abortions performed in the United States — about 1.3 percent — occurred 20 weeks after the fetus was conceived. The House bill doesn’t attempt to prohibit abortions prior to 20 weeks, and it explicitly carves out exceptions for rape, incest and health conditions which threaten the mother’s life.
That said, claiming the bill “decimates the rights of every single woman in the country,” as an email sent to supporters by the pro-choice group Emily’s List alleged, is a bit of an exaggeration.
2) Roe v. Wade is irrelevant, but the 20-week restriction does push the limits of Supreme Court precedent
Despite claims from the Obama administration and others that the bill “is a direct challenge to Roe v. Wade,” Roe was already overruled partially by the Supreme Court in 1992 in a case called Planned Parenthood v. Casey.
In Casey, the Justices threw out the old trimester test for limiting abortion from Roe and replaced it with the “viability” test.
The Court’s viability test permits the government to ban abortions up to the point in which the fetus is capable of surviving outside of its mother’s womb, so long as there is an exception for the health of the mother.
As medical technology has improved over the decades, the point of fetal viability has shifted to earlier in the pregnancy. When Roe v. Wade was decided in the 1970s, fetuses were considered viable at around 28 weeks. Today, advances in technology make fetuses viable at closer to 23 weeks.
It may be possible for a fetus to independently survive at week 20, but it’s not the norm. It’s fair to say that the 20-week bans are pushing the limits of current constitutional precedent on abortion.
3) The House bill is all about fetal-pain, not fetal viability
The GOP bill is premised on research which suggests fetuses are able to feel pain at 20 weeks.
Republicans are implicitly gambling that courts would be willing to conclude that preventing fetal pain is a compelling state interest for protecting the unborn similar to the fetal viability test from Casey. That’s a bold, new legal argument, but it’s still consistent with both Roe and Casey.
The fetal pain theory is hotly contested today, as is absolutely anything that implicates abortion-rights, but ten states have concluded that fetal pain is a compelling-enough interest to prohibit abortion after 20-weeks except in cases where the mother’s health is at risk.
