More States Move to Restrict Late-Term Abortions

Amid the firestorm in Texas politics on the legislative vote to ban abortions after 20 weeks and increase regulation of the health and safety of clinics that perform abortions (despite a failed filibuster, a successful mob takeover of the statehouse, and now a special session of the legislature), national attention has turned to these laws that create a time barrier on late-term abortions.

In 41 states, existing statutes prohibit abortions beyond a certain point in pregnancy, according to the Guttmacher Institute. The Guttmacher study categorizes the states by the week of pregnancy at which abortion becomes illegal according to the statute.

Four states prohibit abortions during the third trimester, which is medically accepted to be 28 weeks. The states prohibiting abortion in the third trimester are Iowa, South Carolina, Texas, and Virginia. It should be noted though, that at least according to well-known abortionist Dr. Leroy Carhart (in a video taken without his knowledge by LiveAction), only four doctors in the country will perform an abortion on a baby over 26 weeks. The number of abortionists willing to do the procedure after 20 weeks may be as high as 300 with nearly half of that number willing to carry them out at 24 weeks, according to another Guttmacher study from 2008.

Additionally, 15 states have passed legislation limiting abortion at a certain week in pregnancy, either 20, 22, or 24 weeks (Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Massachusetts, Nebraska, Nevada, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, and South Dakota). In March, legislators in Arkansas overrode Governor Mike Beebe’s veto and passed a ban on abortions after 12 weeks, but this law is not being enforced pending litigation.

Twenty-two states limit abortion after a baby becomes viable outside of the womb (typically 24 weeks, though data from the National Institute of Child Health and Human Development shows some cases of survival even earlier) (Arizona, California, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, North Dakota, Ohio, Tennessee, Utah, Washington, Wisconsin, and Wyoming). In a few weeks, North Dakota’s new law limiting abortion after 20 weeks of gestation will take effect alongside a ban on abortions after a fetal heartbeat is detected (unborn babies’ heartbeats are detected as early as six weeks).

Nine states do not have statutes that restrict late-term abortions and are therefore not mentioned in the study (Alaska, Colorado, Mississippi, New Hampshire, New Jersey, New Mexico, Oregon, Vermont, and West Virginia).

The Supreme Court gave physicians the right to determine when a fetus is viable in Colautti v. Franklin. According to undercover investigations, prominent late-term abortionists do not acknowledge that a 23-week baby is just one week away from viability outside of the womb (let alone admit to mothers contemplating abortion that the baby is fully formed at this point in pregnancy and that a small but growing number of babies are able to survive outside of the womb even at this early stage).

Unfortunately, many states that claim to have limits on late-term abortion provide great latitude for physicians to determine that a mother’s health requires abortion. The Guttmacher study identifies nine states that limit this exception to physical health (the other 28 states allow for mental health as a reason for late-term abortion). Furthermore, the study identifies Maryland as the only state that allows abortion for any fetal abnormality, while three states (Georgia, Louisiana, and Utah) allow for abortion only in cases of lethal fetal abnormalities. The ability to have a 33-week late-term abortion for any fetal abnormality (here, a reported 31-week discovery of a seizure syndrome) resulted in the recent death of Jennifer Morbelli on February 7, 2013 in Maryland. Her death certificate states that the cause of death was Disseminated Intravascular Coagulation “due to or as a consequence of Amniotic Fluid Embolism following Medical Termination of Pregnancy due to or as a consequence of fetal abnormalities.” Four states (Idaho, Michigan, New York, and Rhode Island) have passed laws that allow for exceptions to late-term abortion restrictions only if the mother’s life is in peril.

The thrust of the Guttmacher study is that the only Supreme Court-sanctioned (what they refer to as “constitutional”) limit on abortion is viability with exceptions for maternal life and health (referring to Roe v. Wade and Planned Parenthood v. Casey). But in Webster v. Reproductive Health Services, the court refused to strike down a state statute that required physicians to determine if the child was viable if the pregnancy was reported to be 20 weeks or more. The other closely-related decision by the Supreme Court was Stenberg v. Carhart, where a partial-birth abortion ban was struck down in Nebraska because it did not include an exception for the health of the mother and was too vague. These decisions together do not produce a ban on states protecting babies (who can feel pain as early as 20 weeks) from abortion after 20, 22, or 24 weeks.

Professor Randy Beck in his McGeorge Law Review article, “State Interests and the Duration of Abortion Rights,” argues that Justice Kennedy’s dissent in Stenberg highlights the Court’s recognition of many state interests in regulating abortion beyond the viability of the fetus. Additionally, Beck says that the majority of the Court in Gonzales v. Carhart recognized additional state interests before viability such as respect for human life, reputation of medical professionals, and fighting infanticide. The recognition of additional state interests in unborn children may lend support to 20-week bans that emphasize the age that a baby is capable of feeling pain.

Many states have recognized an interest in protecting a fetus from pain, including Alabama, Arkansas, Indiana, Louisiana, Nebraska, and Oklahoma, and have passed gestational-week bans based on the belief that a child feels pain at 18-20 weeks. North Dakota legislators have also agreed to ban abortions based on fetal-pain after 20 weeks and the law will go into effect August 1, 2013. Three more states, Arizona, Georgia, and Idaho, have passed 20-week bans, but the laws are currently unenforceable pending the outcome of litigation. Finally, on June 18, 2013, the U.S. House of Representatives passed the Pain-Capable Unborn Child Protection Act prohibiting abortions after 20 weeks with an exception in cases where the mother’s life is in danger or rape or incest has occurred.

Bans of this type continue to enjoy broad public support as debates over them and demonstrations regarding them continue to mount.