The overall impact if all of these provisions stand will be that most women in Texas will not be able to get abortions. —Janet Crepps, senior counsel for the Center for Reproductive Rights
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.
News cycles also drive labels, Tobias said, citing the uptick in pro-choice sentiment following the controversy over rape and pregnancy comments made by two pro-life Senate candidates in 2012, which spurred an uptick in “pro-choice” identity. This was followed by the murder trial of abortion doctor Kermit Gosnell, which focused attention on late-term abortions and gave renewed impetus to legislative efforts like those under way in Texas.
Tobias believes that the labels people use belie the nuances they bring to the issue. Those who support exceptions for rape and incest, she said, “might label themselves as pro-choice,” Tobias said, “but we would say no, if you think most abortions should be illegal, you are pro-life.”
She points to a recent Huffington Post poll that showed 59-30 percent support for an abortion ban after 20 weeks.
A shift in regulations
The Texas measure is the latest in a flurry of state-level abortion regulations since 2007, when the Supreme Court in Gonzeles v. Carhart sustained a federal statute outlawing “partial birth abortion.”
That 5-4 decision was seen as an opening to further regulation because Anthony Kennedy, the swing justice most likely to decide the outcome, wrote that there was scientific uncertainty as to “whether the barred procedure is ever necessary to preserve a woman's health,” noting that “the court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty."
Abortion opponents see hope for sustaining the new restrictions in a new theory, which is that the state has an interest in preventing pain being inflicted on a “pain capable” fetus. If the courts in the end sustain this approach, it will reflect a distinct shift.
Current abortion regulations use fetal viability as the point at which the state may vigorously regulate abortion, stemming from Casey v. Planned Parenthood, the 1992 decision that replaced Roe v. Wade’s trimester approach.
Any regulation of late-term abortions would also have to navigate through or plow through Doe v. Bolton, the sister case to Roe v. Wade, which essentially held that the doctor has broad discretion in determining whether the mother’s health requires an abortion.
The Texas statute navigates this exception mine field by using language drawn directly from Casey, calculated to appeal to Kennedy, who helped write it. The exception allows a post-20 week abortion when necessary to “avert the woman’s death or a serious risk of substantial and irreversible physical impairment of a major bodily function, other than a psychological impairment .”
By restricting the exception to physical health and excluding psychological health, Tobias said, the bill seeks to rein in escape hatches for abortion doctors.