Once again, Congressional Republicans are trying to implement a nationwide ban on abortion after 20 weeks of gestation — and the argument behind the bill is basically junk science.
The legislation, called the Pain-Capable Unborn Child Protection Act, passed the House in September and it's up for a vote for a Senate on Monday. It falsely claims that "an unborn child is capable of experiencing pain by at least 20 weeks after fertilization, if not earlier." The bill seeks to ban abortion procedures after 20 weeks post-fertilization (or 22 weeks after a woman's last menstrual period), except in cases of rape, incest, or danger to the mother's life. It also imposes a fine and up to five years in prison to those who attempt or perform an abortion at that stage.
Dr. Daniel Grossman, a professor of obstetrics, gynecology and reproductive sciences at the University of California at San Francisco and director of Advancing New Standards in Reproductive Health, told Refinery29 that existing scientific research contradicts the anti-choice claim that fetuses can feel pain at 20 weeks.
"The best available evidence indicates that it's not possible for a fetus at 20 or 22 weeks to feel pain. The neurofibrils that connect pain receptors to the cerebral cortex are not developed, and really don't develop until the third trimester — past 26 weeks," he said.
Grossman's comments are supported by the Journal of the American Medical Association, which in 2005 published what it's considered to be the most comprehensive literature review on fetal pain to this day. (Even though the literature is more than a decade old, the American Congress of Obstetricians and Gynecologists said in 2015 that "no research since its publication has contradicted its findings.") According to the authors of the review, fetuses don't develop the neurological wiring to feel pain until the third trimester, and studies found that premature babies in particular seem not to be able to feel pain until 29 or 30 weeks.
One of the reasons why Republicans claim that "an unborn child is capable of experiencing pain" is because fetuses can demonstrate reflexes at an early stage. But Grossman said that even though a fetus might withdraw a limb in response to a "painful stimulus" that doesn't mean much. "A reflex is something that happens below the level of the brain, [it happens] at the level of the spinal cord, and that's not a sign of a fetus actually feeling pain," he explained.
Grossman added that another talking point used to support the misconceptions about fetal pain involve the rare events in which a fetus might need surgery and anesthesia is used. He said, "The main reason why that's done is to prevent the fetus from moving during the surgery. Again, it's not done to prevent pain."
A total of 17 states have laws in place prohibiting abortion at 20 weeks and the Pain-Capable Unborn Child Protection Act would make the ban nationwide. Only 1.3% of all abortions in the United States take place after 20 weeks of gestation, according to a 2009 report by the Centers for Disease Control and Prevention.
Dr. Beverly Gray, an assistant professor of Obstetrics and Gynecology at Duke University, told Refinery29 that even though the procedure at that stage might not be as common, the reasons women might seek care are very complex.
"Many of these women are faced with pregnancies complicated by severe birth defects that can only be diagnosed at this stage of pregnancy. Other women are diagnosed with medical complications, such as cancer, where pregnancy can put their life at risk," she said. "Many teenagers don’t realize they are pregnant until the second trimester and often seek care later, especially if they are hesitant to disclose the news to their family. Because abortion after 20 weeks is more rare, there are fewer ob-gyn’s who provide this care, making it logistically difficult to find a doctor, which can also create delays."
Grossman expanded on the delays, arguing that the abortion restrictions that are being enacted at the state level — from waiting periods to limitations on medical abortion to targeted regulation of abortion providers, better known as TRAP laws — contribute to an increase of women seeking the procedure at a later stage. For example, a year after Texas' controversial House Bill 2 was enacted, there was a 27% increase in the number of second-trimester abortions in the state. (The sweeping regulations of HB2 led to the closure of about two dozen of the 44 clinics in the state. The Supreme Court ruled 5-3 against the bill in 2016, but the damage was done.)
"TRAP laws are almost impossible for clinics to comply with and can lead to the closure of the facilities. So patients have to travel farther, it costs more money to arrange transportation or take days off from work and arrange childcare. But also leaving fewer clinics increases the [overcrowding] of remaining clinics," he said. "This is what we saw in Texas, where as clinics closed particularly in the Dallas-Forth Worth area, the wait time to get an appointment at the remaining clinics increased to three weeks or even longer. Obviously, that pushes women [to seek care] later and later in the pregnancy."
The Pain-Capable Unborn Child Protection Act passed the House in 2013 and 2015, but failed in the Senate both times. Former Republican Rep. Trent Franks, who resigned in December after being accused of sexual misconduct, and 170 other representatives co-sponsored the bill this time around. At the March for Life, President Trump called once again for Senate Republicans to pass it and send it to his desk. The bill would need 60 votes to clear the Senate, which makes it unlikely to pass.
But Dr. Gray says in the unlikely instance that the bill passes, it would place an undue burden on women.
"As a physician, I don’t recommend that legislators determine what is right for a woman’s health," Gray said. "These are conversations that are meant to be had with a physician and patient."
Grossman went even further, calling the 20-week abortion ban a hypocritical move on part of Congressional Republicans and the anti-choice politicians who pass similar bills at the state level.
"If the legislators who are pushing for this kind of bill were serious about trying to reduce later abortion, they would do more work to improve access to access to early abortion," he said. "Once a woman has made up her mind about her decision to have an abortion, she should have access to that care as quickly as possible."