“Maybe some people need to actually learn how a woman’s body works.” I watched as Vice President Kamala Harris said this pointedly to a room full of Indiana lawmakers while reporting on the ground in the Hoosier State on July 25, shortly before a near-total abortion ban passed there. The Veep’s words jumped to mind this week when South Carolina Sen. Lindsey Graham’s office introduced proposed legislation known as the “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act.” It would ban nearly all abortions after 15 weeks nationwide, with only a few “exceptions” for issues such as risk to a parent’s life and cases of rape and incest.
I flashed back to Harris’s quote because the act doesn’t seem to take into account how a pregnant person’s body works. “Late-term” abortion isn’t a medical term, according to the American College of Obstetricians and Gynecologists (ACOG). And 15 is an arbitrary number of weeks that doesn’t mark any major milestones in fetal growth or pregnancy. Research has also confirmed fetuses don’t have the capacity to experience pain at this point, ACOG notes.
But the misleading terminology does serve a troubling purpose: Ahead of the midterms — in a cycle where reproductive rights are a major mobilizing issue on the ballot — it others and demonizes abortions after 15 weeks and pushes forward the conservative, Christian goal of banning abortion, while trying to appeal to those who are accepting of abortion in some or most cases. About 61% of Americans, including 38% of Republicans, support accessing the life-saving and -changing medical care in all or most cases, according to Pew Research.
Republicans know this, and want to diminish abortion access while also making a move that might seem more palatable for Americans who believe in the right to abortion in most cases, says Laurie Bertram Roberts, executive director of the Mississippi Reproductive Freedom Fund, which offers financial assistance and practical support to those seeking abortions, as well as free emergency contraception, and other community supports.
“[Republicans] know they can't come for anything below 15 weeks without people getting upset, so they’ve got to be stealthy about it,” Bertram Roberts says. “They’re thinking: ‘What doesn’t look like a total ban?’”
But it would serve as another step toward restricting access on a nationwide scale — and it isn’t rooted in science.
Unpacking the phrase “late-term abortion”
The phrase “late-term” has “no clinical or medical significance,” according to ACOG. It classifies a “late-term” pregnancy as 41 weeks to 41 weeks and six days of gestation. (Pregnancy is counted from the first day of your last period, and typically lasts 40 weeks total, which is considered “full term,” although most people think of pregnancy as lasting nine months.) “Fetal viability” — a complicated concept that medically refers to the point at which a fetus can survive outside the womb — is usually considered to happen at about 23 or 24 weeks. This is the typical timeframe anti-abortion groups have been referring to when using the term “late-term abortions” to galvanize people.
Sen. Graham has introduced similar legislation during multiple legislative sessions. Last year, he proposed banning abortion beginning at 20 weeks, with no noted exceptions for serious fetal anomalies — which often are typically only determined around or after the 15-week mark — unless a parent’s life was at risk. It never passed the Senate.
And doctors note Graham’s new, arbitrary 15-week cutoff will make an already dangerous climate for reproductive rights that much more dire.
“This proposed legislation… is predicated on false claims of gestational development of pain response, propagates inflammatory rhetoric, and represents another callous example of governmental intrusion into the practice of medicine,” an ACOG spokesperson told Refinery29 in an emailed statement. “People in need of abortion care should be treated with respect and compassion, not barriers. Prohibiting abortion as a medical intervention exposes patients to the risks associated with pregnancy, labor, and delivery, and will force many people to continue a pregnancy with devastating consequences.”
The consequences of a 15-week ban
If passed (and there’s little chance of that in the current or a future Congress due to the filibuster requiring 60 votes), the effects will especially hurt folks who’ve already been impacted since Roe v. Wade, which protected a person’s right to abortion on a national scale, was overturned on June 24. Although a minority of folks have abortions after 15 weeks — about 6% of the roughly 629,000 reported abortions in 2019 happened between the 14th and 20th week of pregnancy, per the Center for Disease Control and Prevention — the number who do is likely ticking up without Roe.
People aren’t “twiddling their thumbs” if they have an abortion at 15 weeks, Bertram Roberts says. They’re typically taking the time needed to overcome the very real hurdles that lawmakers have placed in front of them — as Bertram Roberts knows all too well from helping people travel out of Mississippi for abortions. If they don’t choose to or can’t self-manage their abortions (which is only an option up to about 10 weeks in pregnancy), they may need to delay their abortions because they’re waiting to raise the funds to go out of state. (Meanwhile, the further into a pregnancy they get, the more expensive an abortion typically is.)
It also takes time to arrange for childcare, take time off work, or figure out other logistics. Not to mention, if someone has an abusive partner or is a teen, barriers are often insurmountable. “There are so many roadblocks. People say you are a horrible person if you have to have it as late as 16 or 17 weeks, but they’re the ones who made it so hard [to obtain an abortion sooner],” says Bertram Roberts.
Conservatives are “creating conditions that cause the exact thing they don’t want,” they add. “They don’t want people to wait, but they don’t want you to be able to access abortion early.”
Black people — who are three times more likely to die from pregnancy-related complications, compared to white people — Indigenous, and people of color, as well as low-income people and those who live in rural areas, would continue to be hurt the most by such a ban.
Meanwhile, if passed, it also impacts folks who want to be pregnant but find out about fetal anomalies post-15-weeks. As it stands now, even if they live in a state that’s already banned abortion, they’d at least have had the option to go to a different state for help. But, if passed, this national ban would spell the end of that.
As journalist and lawyer Jill Filipovic writes: “I realize the men making these laws know nothing of women’s bodies. But the reality is that a doctor can’t identify a serious fetal anomaly early in pregnancy — six-week abortion bans, for example, don’t have fetal anomaly exceptions either, but that early, there isn’t even a fetus to diagnose an anomaly in.”
The fact is, Sen. Graham’s so-called “late-term” abortion ban doesn’t take people’s actual bodies, anatomy, or autonomy into account. But, advocates say, even if this particular ban wasn’t labeled inaccurately as “late-term,” it would still be just as harmful in limiting abortion further at a time many already find it impossible to access.
Sen. Graham’s office hasn’t returned Refinery29’s request for comment.