Republican Congressman Trent Franks (AZ-8) is at it again. Last Congress, he introduced H.R. 1797, the Pain-Capable Unborn Child Protection Act and he wasted no time introducing the bill, again.
The basic summary of the bill is that it would outlaw abortions after the fetus is 20 weeks of gestation under the assumption that the fetus can feel pain at this time. The bill, if passed, would punish doctors who perform abortions but not the women who try to obtain the abortion. There are the usual exceptions in case of rape, incest, or in the case of saving the mother. Of course the rape and incest exceptions are only there if the rape or incest charge has been filed with the appropriate law enforcement agency.
It passed in the House in the 113th Congress by a vote of 228-198. The bill was taken up in the Senate by presidential hopeful Republican Senator Lindsey Graham of South Carolina. The bill attracted 40 co-sponsors, all of whom are Republicans. The co-sponsors included Rand Paul and Mike Lee. Paul has been critical of controversial legislation such as same-sex marriage stating that such issues should be left to the individual states. Paul also believes that abortion legislation should be left to the states, as long as they pass anti-abortion laws. Paul, in his neverending efforts to try to appeal to the religious right section of the Republican Party has also introduced legislation that would give embryos the same rights as a person and the same legal protection. Well, of course the 14th Amendment wouldn't apply according to his own legislative history, so many of the Constitutional protections wouldn't apply but that's another story. I didn't really want to focus on Paul's issues with the legislation.
Speaker of the House John Boehner has already stated that this bill will come to a vote next Thursday. Not coincidentally, this bill will be voted on as thousands of anti-abortion activists and demonstrators descend upon Washington. If it seems like it's a political show, it's because it is.
So why 20 weeks? The Journal of the American Medical Association concluded that fetal pain perception by fetuses probably does not begin until the beginning of the third trimester (28 weeks). Arguing for this ban, many pro-lifers dismissed the study as politics masquerading as science. They published their own report to try to prove that 20 week bans were about protecting fetuses from feeling pain. But the scientists they quoted largely disagree with what the report found. Dr. Nicholas Fisk, one of the scientists they rely on, is persuaded that pain cannot be felt by fetuses prior to 24 weeks. Other scientists are quoted as having this belief that pain can be felt prior to 20 weeks because they rely on anesthesia and painkillers in fetal surgeries. But the painkillers and anesthesia is primarily used to minimize stress hormones and dangerous movements. Most of the available medical evidence shows that pain cannot be felt until after 24 weeks.
The main medical researcher that has been quoted as of late is Dr. Sunny Anand who found in his digest of research that at 14 weeks gestation, the fetus may be able to feel pain. This is a full 6 weeks prior to what this bill is trying to stop. Of course, pro-lifers tend to leave out other things Dr. Anand has recommended to perform abortions at this late juncture to prevent pain such as using anethesia or an injection to stop the fetal heartbeat. Both of these things would render no pain to the fetus. This is unacceptable to many pro-lifers who argue that being able to feel pain is an important threshold and makes them similar to an actualized baby or a toddler. The fact that there is a way to prevent fetuses from feeling the pain (if they are old enough to even feel pain) is irrelevant.
The most likely reason that they are advocating for a 20 week ban is that is the earliest that banning abortions seems to be politically popular. During the Senate debates on S. 1670, Lindsey Graham brought up polls immediately showing that 64% of the public think that abortions should not happen in the second three months of pregnancy. 63% of the American public don't believe that abortions should be permitted beyond when the fetus can feel pain. Anna Higgins of the Family Research Council stated that there is a strong consensus for the bill. Of course, the Family Research Council does not feel that a strong consensus on something such as same-sex marriage is relevant but I digress. A new poll from Quinnipiac University shows that 60% of Americans say they support this bill. A ban at 16 weeks don't produce the same numbers, According to a Harris Interactive poll, only 43% of Americans believe in restricting abortions to the first 12 weeks of pregnancy. A narrow majority of Americans support a ban at 16 weeks. The bill is based not in science but in public opinion.
The bill would undermine the Supreme Court decision in Roe v. Wade and provides no substantial impact beyond being a good political move. These bans provide a slope to allow more abortion restrictions in the future that are similar to Arkansas's and North Dakota's bills that are currently being discussed.