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Texas at the forefront of national push on fetal pain legislation

Published: Friday, July 12 2013 11:40 p.m. MDT

Hundreds wait in line to enter the Senate gallery at the Texas State Capitol in Austin, Texas, Friday, July 12, 2013. The Texas Senate leader, Lt. Gov. David Dewhurst, has scheduled a vote for Friday on the same restrictions on when, where and how women may obtain abortions in Texas that failed to become law after a Democratic filibuster and raucous protesters were able to run out the clock on an earlier special session. (AP Photo/Tamir Kalifa)

Tamir Kalifa, AP

North Carolina and Texas edged closer this past week to passing legislation that would essentially shut down nearly all abortion clinics in both states, abortion rights advocates argue.

In Texas, the GOP-controlled Senate stood poised Friday night to approve a bill passed earlier in the week by the House. Gov. Rick Perry is poised to sign it. Debate continued late into the night, briefly stalled by loud protests in the gallery.

"The overall impact if all of these provisions stand will be that most women in Texas will not be able to get abortions,” said Janet Crepps, senior counsel for the Center for Reproductive Rights.

Crepps said that several similar provisions have been passed by a number of states in recent years and that several of these have been suspended by judicial action.

The battle in Texas drew national attention late last month when Sen. Wendy Davis, a Democrat, stood for 11 hours to filibuster the bill at the close of the regular legislative session, with raucous support from the gallery.

Texas Republicans responded by calling a special legislative session, and on Wednesday the Texas House, on a 96-49 vote, passed the bill, which would outlaw most abortions after 20 weeks of pregnancy, require abortion doctors to have hospital admitting privileges, and impose ambulatory surgical center standards on abortion clinics.

The 20-week fetal pain provision drew the most attention, Crepps said, but added that other provisions in the bill have a more direct impact on abortion availability.

The surgical center standard alone would close all but five of 42 abortion clinics in the Lone Star State, Crepps said, requiring retrofitting for air systems and hallway widths that she said have nothing to do with patient safety.

In North Carolina, Republicans in the House inserted language into an unrelated bill on Thursday. The abortion provision would require North Carolina abortion clinics to meet ambulatory surgical center standards.

As in Texas, this requirement could significantly reduce abortion availability in North Carolina. Currently, only one abortion clinic in the state meets that standard, opponents argued.

The North Carolina Senate had passed a similar measure last week, also attached to an unrelated bill, but the Republican governor requested changes. Critics on both cases argued that the effort sidesteps the traditional hearings and deliberation used to craft legislation.

Changing laws across the country

Texas would become the 12th state to ban abortions after 20 weeks and the 10th to do so using a fetal pain justification, according to Carole Tobias, president of the National Right to Life Committee. Arizona passed a 20-week abortion ban but did so using the mother’s safety as the rationale, not fetal pain.

Fetal pain is a relatively new front and a hotly contested science. Advocates on both sides assert that the facts are clear, but much of this hinges on interpretations of what it means to feel pain and whether it requires consciousness or awareness.

It’s hard to say for sure what a fetus younger than 24 weeks experiences in terms of pain, said Dr. Sessions Cole of the Department of Pediatrics at the Washington University School of Medicine in St. Louis.

“There is a continuum here, rather than an on-off switch,” Cole said. Cole said he doubts that a fetus experiences pain as we understand it before 24 weeks, but said there is a great deal of ambiguity and contested science.

Tobias said that the politics of abortion are much more complicated than one might get from reading the Gallup poll, which regularly shows a sharply divided electorate over the issue of abortion.

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