The House passed a bill to ban abortion at 20 weeks. The Senate bill failed by nine votes. These bills are steps toward overturning Roe v. Wade.

On October 3, 2017, the House of Representatives passed a bill--HR36--which criminalizes abortions performed at 20 weeks and after (and on November 1, 2017, the House held hearings on another bill--HR490--which criminalizes abortions as early as six weeks). On January 29, 2018, the Senate voted on its version of HR36, known as S 2311Fortunately, it did not pass the Senate. But the GOP will certainly continue their efforts to undermine women's rights.

If a bill like this ever gets to the White House, Donald Trump will sign it in a hurry and Mike Pence will hold the pen while he does. It doesn't matter to the GOP that both of these bills are clearly unconstitutional under Roe v. Wade. These bills are part of the GOP strategy to get a case to the Supreme Court that will overturn Roe for good.

Read below the details of each bill. 

HR 36 and S 2311

"Pain-capable" 

The House and Senate call this legislation the “Pain-Capable Unborn Child Protection Act” and that’s the first indication of how badly the bill distorts science and degrades women. It starts with a section of legislative findings, that ignore science to make the argument that a fetus at 20 weeks can feel pain. The bills state that “there is substantial medical evidence” that a fertilized egg is something that can experience pain by “at least 20 weeks after fertilization, if not earlier.” This is not true. There is not “substantial” medical evidence for this proposition. Anti-choice legislators who continue to assert this rely on the same small group of researchers, many of whom have objected to a mischaracterization of their findings.  In fact, the actual scientific and medical consensus is that brain connections needed to feel pain are not in place until at least 24 weeks, which is also the earliest possible time a fetus becomes viable outside the womb.

 

"Unborn child"

If the use of the term “pain-capable” reveals how anti-science this bill is, the use of the term “unborn child” reveals how anti-woman the bill is. In the definitions section, we learn that, for the purposes of this bill, an “unborn child” is “an individual organism . . ., beginning at fertilization, until the point of being born alive . . .”  The bill equates a fertilized egg with an embryo with a fetus, calls each a “child,” and puts each ahead of the fully formed human being who carries them inside her.

 

Narrow exceptions for women's lives, rape and incest

HR36 and S2311 make narrow exceptions for when an abortion will be allowed. Each of these exceptions comes with disturbing limitations.

  • The exception for an abortion to save a woman’s life allows the exception when her life is “endangered by physical disorder, physical illness, or physical injury.” The bill explicitly excludes consideration of “psychological or emotional conditions.”  

  • The exception for pregnancies resulting from rape requires documentation that the woman reported it to law enforcement, or that she received counseling or medical treatment for the rape. There is a further restriction on what counseling and treatment is acceptable: it cannot have been “provided by a facility that performs abortions (unless that facility is a hospital).” So if a rape victim gets counseling or treatment at, say, Planned Parenthood, that doesn’t count.

  • The exception for pregnancies resulting from incest requires documentation of a report to law enforcement or a government agency authorized to act on child abuse. The incest exception is limited to minors; there is no exception for adult women who are victims of incest.

 

Hurdles for providers

In addition to those barriers facing the woman seeking an abortion, HR36 and S2311 also establish barriers for the providers:

  • Only physicians are permitted to perform abortions, excluding other qualified health care providers.

  • The physician must perform the procedure “only in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive.”

  • If there is a “potential to survive outside the womb,” then there must be a “second physician trained in neonatal resuscitation” present during the procedure.

  • The bill contains a mandatory reporting provision which requires colleagues to report to law enforcement the conduct of those who violate the law

  • Physicians must annually submit data on the number of abortions performed and details of each, including post-fertilization age, method of abortion, location of procedure, and the legal exception under which it was allowed

  • The bill establishes criminal penalties of a fine or up to 5 years imprisonment

 

Informed consent

The bills contains a degrading “informed consent” mandate which requires that the woman, the physician and a witness sign a consent form before the abortion procedure. The form must contain certain statements, many of which repeat the term “unborn child” or simply “child.” These include statements that abortion is illegal at 20 weeks or later unless an exception applies, that the doctor must perform the procedure in a way “most likely to allow the child to be born alive,” and that the woman can sue for damages if the provider violates the law.

 

Civil actions against providers

HR36 and S2311 include civil remedies for women who have had an abortion. The bills allow women to seek damages in a civil action against a provider who has violated the bill’s provisions. This provision is profoundly unsettling. First, the existence of a civil remedy seems to be built on the assumption that an abortion will cause lasting harm to a woman and/or that she will regret her decision. Tellingly, this provision of the bill is the only one that recognizes psychological harm; it allows a woman to seek damages for “all injuries, psychological and physical” if the abortion was in violation of the law. Second, remember that psychological harm caused by an unwanted pregnancy is not sufficient to get an abortion under these bills; but psychological harm from the termination of the unwanted pregnancy is something the Republican Congress can understand.

 

HR 490

"fetal heartbeat"

The GOP calls this bill the "Heartbeat Protection Act." The bill amends the criminal code to require that a physician performing an abortion must first determine and inform the pregnant woman "whether the fetus has a detectable heartbeat" and cannot perform the abortion if "the fetus has a detectable heartbeat." A physician who violates the law will be punished by a fine, or up to five years imprisonment, or both. 

The "heartbeat" language is meant to outlaw all abortions as early as five to six weeks, since some cardiac activity can be detected in embryos that young. But as this article from The Atlantic explains, that cardiac activity is not the beat of a fully formed heart; indeed, it isn't even audible at that point, but simply movement that one can see on an ultrasound.

 

no exceptions for rape or incest

HR490 contains no exceptions for an abortion to protect a woman's health, or for pregnancies resulting from rape or incest. As in HR36, the exception in this bill for an abortion to save a woman’s life allows the exception when her life is “endangered by physical disorder, physical illness, or physical injury.” The bill explicitly excludes consideration of “psychological or emotional conditions.”  

 

the gop strategy

HR490 is blatantly unconstitutional, and the GOP knows it. The bill isn't even written as serious legislation. There is no statement of legislative findings and no section that provides definitions of the terms used in the bill. The only reason this bill exists is to frame other anti-choice bills as "less radical." 

Consider the timing of legislative action on HR490. The bill was first introduced in January 2017, and not much happened with it for months. Then the House passed HR36, and suddenly scheduled hearings for HR490. This is a trick. The GOP wants a 20-week ban to look rational and uncontroversial in comparison to a six-week ban. It's the exact same strategy the GOP employed in Ohio in that state's 2016-2017 legislative session. Incredibly, this tactic worked in Ohio. In March 2017, Gov. John Kasich signed a 20-week abortion ban into Ohio state law. 

Obviously, any federal abortion ban will be the subject of a lawsuit that ends up in front of the Supreme Court. The GOP end game here is overturning Roe v. Wade. These House bills are the first steps in that direction.