Congress Should Oppose the 20-Week Abortion Ban

Heather D. Boonstra, Guttmacher Institute
Reproductive rights are under attack. Will you help us fight back with facts?

First published on The Hill:

This Tuesday, the U.S. House of Representatives is voting on a bill that would impose a federal ban on abortion at or after 20 weeks post-fertilization (equivalent to 22 weeks’ gestation). The Senate is expected to take up the same legislation in the near future.

Following on the heels of efforts to roll back the Affordable Care Act’s many gains and gut Medicaid, this is yet another attack that would do nothing to advance public health. Rather, it would politicize women’s health, limit access to abortion care and stigmatize people who need later abortions.

The bill, 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. However, that claim is not supported by the preponderance of scientific evidence.

The bill is also patently unconstitutional, since it would prohibit abortion before viability without any exception to preserve a woman’s health—an exception the U.S. Supreme Court has repeatedly demanded for more than four decades. Furthermore, it 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. And it mandates a counseling process that clearly runs counter to fundamental ethical principles of informed consent that have long guided the practice of medicine. 

Although the vast majority of abortions take place early in pregnancy, slightly more than 1% of abortions are performed at 21 weeks or later. A 20-week abortion ban would fall hardest on low-income women and women of color, for two main reasons: One, these are the very groups bearing a disproportionate burden of unintended pregnancies. And two, according to a study by researchers at UCSF, women obtaining an abortion at or after 20 weeks’ gestation were much more likely than women obtaining an abortion in the first trimester to report delays because they had difficulty raising funds for the procedure and travel costs, or because they had difficulty securing insurance coverage.

The 20-week abortion ban bill would also impose a little-noticed requirement 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.

If Congress is 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, we know that a decline in unintended pregnancies has been the main driver of the 2008–2014 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. Shamefully, Congress and the Trump administration are moving in the wrong direction on contraceptive access—whether it’s attacks on the ACA and Medicaid, undermining the ACA’s birth control benefit, attempts to "defund" Planned Parenthood, or proposed cuts to the Title X national family planning program.

It’s clearer than ever that purported anti-abortion policies only serve an ideological agenda, but do not advance women’s health or public health more broadly.

First published on The Hill.