SALT LAKE CITY — The theme of the annual March for Life in Washington, D.C., on Jan. 27 is “The Power of One,” but it could well be “The Power of 20.”
Emboldened by a spate of state laws that ban abortion after 20 weeks, anti-abortion groups have come to see the halfway point of pregnancy as "the vehicle to end abortion in America," and that vehicle is gathering speed.
The same week as the swearing in of a new president who supports 20-week ban legislation and has promised to appoint "pro-life" Supreme Court justices, a new report has been released showing abortions in the United States at the lowest level since 1974, a year after the Supreme Court's landmark Roe v. Wade ruling legalized abortion on Jan. 22, 1973.
In recent weeks, Ohio and Kentucky have passed laws forbidding abortion after 20 weeks, becoming the 15th and 16th states with such restrictions. Similar measures are pending in Virginia and Florida.
On the federal level, two attempts to enact 20-week bans have failed in recent years, but Sen. Lindsey Graham, R-S.C., plans to re-introduce his “Pain Capable Unborn Child Protection Act” within a few weeks, his communications director said.
In a country that remains deeply divided over abortion after more than four decades, it’s unclear if a ban that affects 1.5 percent of all abortions will help shrink the divide or make it wider. The Associated Press reported that a new report by the Guttmacher Institute, a research group that supports abortion rights, credits increased contraceptive use and a "surge of abortion restrictions in many states" for the decline.
And some people in the anti-abortion movement believe that 20-week bans, also known as "pain-capable legislation," can have further impact as the bans can effectively turn a fetus into a baby in the eyes of many people who are ambiguous in the abortion debate. That confidence is boosted by medical technology that allows premature babies to survive at ever younger ages and by public unease over at what point a fetus can feel pain caused by abortion.
Abortion-rights advocates insist 20-week bans are unconstitutional, and the 10th Circuit Court of Appeals in Denver has said as much, which is why Utah's abortion laws aren't as strict as those in some other states. Utah legislators who want to end abortion have had to put forth weaker measures, such as one passed last year that requires anesthesia for fetuses in some abortions.
A 20-week fetus, according to experts on fetal development, has tiny sprouts of hair and can likely hear his mother's voice at this stage. Recognizably human, the fetus is about the length of a banana and has eyebrows, eyelashes and fingernails. An ultrasound would reveal whether it's a boy or a girl, and the eyes are fully formed.
A medically accurate model in size, shape and weight of a 20-week-old fetus. | Pro-life Utah
Some people believe the fetus at this stage of development has also reached the point at which it can feel pain, which is one reason the argument for 20-week bans has shifted away from viability, the point at which a fetus can survive outside the womb. That standard has become "increasingly unworkable," said Katherine Franklin, communications director of Ohio Right to Life.
“Since Roe became law, the date of viability has dropped from the third trimester to 24 weeks. Now, in 2017, we know that unborn children can live at 22 weeks. You see all sorts of amazing headlines about babies who are defying the odds. If viability is a moving target, why don’t we look at something else?” said Franklin, explaining how that "something else" — pain — helped win support for Ohio's new law, which Gov. John Kasich signed in December.
“We ultimately want to stop all abortions, but if we can get to the heart of what an unborn child experiences during abortion, that (pain) is a human experience we can all relate to,” Franklin said.
Because of the ethics involved in measuring pain in human beings, even in the unborn, there have been relatively few studies done on the subject, and many of those that exist conflict. Some have shown that the fetus does not have the capacity to process pain until late in the second trimester, and that any movement away from potentially painful stimuli is reflexive. Others conclude that such movement is proof that a fetus can experience pain.
Mary Taylor, president of Pro-Life Utah, believes the evidence is strong, but even if the results were unclear, she believes that society should err on the side of protection.
“I think we should make the presumption of pain capability; they (abortion rights supporters) should have to prove the child does not feel pain,” she said.
Utah lawmakers addressed this in 2016 when they passed a law requiring an anesthetic be given any fetus of 20 weeks’ gestation or older being aborted. It was the strictest bill the state could pass at the time, its sponsor said, but it was not enthusiastically received by national anti-abortion groups such as the Pro-Life Action League.
“It suggests we’re condoning the killing, as long as the child is anesthetized,” said the group’s executive director, Eric Scheidler. “At the end of the day, we don’t want to provide any way around things for abortion providers; we don’t want to seem to be aiding and abetting the procedure.”
Measures that ban abortion after 20 weeks are gaining acceptance, he said, not only because of concern over fetal pain, but because of medical advances that are pushing back the age of viability.
A study published in 2015 in the New England Journal of Medicine showed that about 5 percent of babies delivered at 22 weeks survived without significant medical problems. This has enabled abortion opponents to redefine what’s considered a “late-term” abortion, and put 20 weeks within striking distance of viability, which is when the Supreme Court says states can restrict the procedure.
“It pulls that line back, but not radically so,” Scheidler said.
Why not Utah?
States that ban abortion at 20 weeks include deeply religious ones such as Alabama, Georgia, Arkansas and Louisiana, as well as Indiana, Nebraska and North Dakota, states that — like Ohio — rank as less religious than Utah in Pew Research Center’s Religious Landscape Survey.
Women dressed in pink hospital gowns gather outside the Senate chambers at the Utah Capitol on March 4, 2016, to protest a bill that would require a doctor performing an abortion during a pregnancy of at least 20 weeks to administer an anesthetic to protect the unborn child from pain. | Scott G Winterton, Deseret News
This is frustrating to anti-abortion advocates in Utah, whose efforts to enact a similar ban are hamstrung by the 1996 decision in the 10th Circuit Court of Appeals that ensured a woman's right to an abortion up to the point of viability. State Sen. Curt Bramble, R-Provo, who sponsored last year’s legislation on fetal anesthesia, said he and his anti-abortion colleagues are “doing all we can within the constraints of the law.”
“In the current judicial landscape, for it (a 20-week ban) to be successful, we would have to argue that viability can be defined at 20 weeks,” Bramble said.
The anesthesia law, meanwhile, has not been challenged in court, which is surprising to Bramble. “We anticipated we would be sued sooner rather than later; it didn’t happen,” he said, adding that he wouldn’t be upset about a court challenge, because he believes it would require the plaintiffs to prove that a fetus being aborted isn’t feeling pain. “I invite them to file,” Bramble said.
Karrie Galloway, president and CEO of Planned Parenthood of Utah, dismissed the law as “frivolous” and not worthy of further attention. “We fought that bill, and that’s the end of it as far as we’re concerned,” she said.
As for other laws cropping up around the country, Galloway said that’s what happens when “politicians decide they’re better doctors and they’re more moral than the rest of us.”
On the horizon
In the coming year, anti-abortion advocates in Utah will focus on legislation that would require abortion providers to tell women that a pharmaceutical abortion —which works through the administration of two pills — can possibly be reversed if the woman has misgivings after taking one pill.
On the national level, buoyed by the 20-week laws and an Alabama court's recent ruling that an unborn baby is a person under that state’s law, Scheidler said his group’s focus this year will be on depriving Planned Parenthood of state and federal funding. House Speaker Paul Ryan, R-Wisconsin, has made that one of his priorities, and if it happens, Scheidler said, it would be “an asteroid hitting the abortion world.”
For different reasons, Galloway concurs it would have a significant impact — the 46,000 Utah women who obtain health care from Planned Parenthood's nine health care centers would find themselves without a provider, she said, because community health centers can't handle the added workload. "Eliminating women's access to their chosen health care provider for family planning is not going to reduce the unintended pregnancy rate," she said.
The American Civil Liberties Union calls 20-week bans "blatantly unconstitutional" and says they place politics above women's health.
"And let's not forget the people who are most harmed by abortion bans: low-income women, women of color, and others who face obstacles to accessing reproductive health services," said Hayley Smith, advocacy and policy counsel for the ACLU.
The Ohio law takes effect March 6, and Ohio Right to Life is confident it will stand. “Even the ACLU has publicly stated they’re not sure they will challenge it; it’s not clear what they will do. This bodes very well for the pro-life movement,” Franklin said.
“I don’t know that this law alone will totally reverse Roe v. Wade, but it poses a very unique challenge to some of its underlying premises. Ohio and 14 other states are now standing outside the Roe v. Wade framework, and that’s a real accomplishment,” she said.