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There Is Nothing Moderate About the 20-Week Abortion Ban

This morning, The New York Times has a story about the new prize tactic of the anti-reproductive rights movement: laws that ban abortions at 20 weeks, which have cleared legislatures in 12 states since 2010 (and passed the U.S. House of Representatives earlier this summer). They aren’t constitutional, as the three court rulings on the topic have shown—they ignore Roe v. Wade, which legalized abortion until viability, or about 24 weeks. But there’s reason to think that won’t always be the case if one of the laws lands before the right-leaning Supreme Court, whose swing vote, Anthony Kennedy, has shown a willingness to trim abortion access in the past. Kennedy takes pride in his reputation as a moderate—and that gets at exactly what’s most insidious about these laws, which is that, to the uninformed, they seem totally reasonable.

As the Times article explains, usually, “the laws ban abortions at the 20th week after fertilization, which is the 22nd week after the last menstrual period,” or only two weeks before Roe’s preexisting line. Nearly 90 percent of abortions occur in the first 12 weeks of pregnancy, so these law stand to bar “several thousand abortions, at most, out of an estimated 1.2 million performed every year.” And this minor hemming of reproductive freedom seems palatable, or in fact appealing, to a majority of Americans. A Pew poll released earlier this week shows that the majority of Americans (54 percent) believe abortion should be legal in “all or most cases,” and 32 percent of those clarified they meant “most,” not “all.” The Washington Post presented similar data in its own poll last month, finding that 56 percent of Americans and, most tellingly, 51 percent of Democrats would prefer a 20-week cut-off to a 24-week one. In other words, even liberals seem to view 20-week bans as a low-cost way of acknowledging abortion’s moral queasiness factor, or of metaphorically “splitting the ticket” on their personal views.

By limiting abortion in ways that impute caution, but don’t actually choke off access for too many women, 20-week laws capture the American zeitgeist on abortion. Unfortunately, that growing consensus is utterly wrong.

In part, that’s true for practical reasons. These laws may ban a tiny minority of abortions, but they tend to impact people in the direst situations. As the Times acknowledges, the most serious fetal defects usually don’t become apparent until around 20 weeks. (You can read a heartrending story on this over at Slate.) What's more, many women who get stuck having their abortions late in the game are poor (or underage, or in an abusive relationship, for that matter). According to the Guttmacher Institute, “forty-two percent of women obtaining abortions have incomes below 100% of the federal poverty level ($10,830 for a single woman with no children)” and an additional “twenty-seven percent of women obtaining abortions have incomes between 100–199% of the federal poverty level.” Abortions aren’t cheap—they often run over $400—and many women spend months hoarding dollars, asking friends and family, or searching for clinics or abortion funds that can help them make up the difference between what they have and what they need to pay.

But there’s another reason to distrust the false moderation of the 20-week ban, which is that it’s totally arbitrary, and based in bogus science. These laws are predicated on claims that fetuses feel pain starting at 20 weeks, even though, as the Times writes, “Most scientists and medical associations say that perception of pain is impossible without brain developments that occur well after 20 weeks.” (Here’s a statement from the American Congress of Obstetricians and Gynecologists elaborating on why this is emphatically the case.)

The truth about 20-week bans, as the Times story reports, is that they were cooked up by the National Right to Life Committee in 2010 when it was desperate to shut down Leroy Carhart, one of a handful of doctors in the country who provides late-term abortions. He had attempted to up access in Nebraska after a neighboring state’s provider, George Tiller of Kansas, was murdered by a conservative activist. NRLC saw an opportunity to stop him in unfounded claims about fetal pain, and in so doing, stumbled on an artificial, pre-Roe barrier to abortion that hewed closely to Americans’ intuitions. But we can’t allow our intuitions to be manipulated so easily. Viability is a firm line, grounded in biological fact. “Fetal pain” is an arbitrary, unscientific line that abortion opponents have only drawn in the hopes that soon, they can push it farther back. (“Our mission is to restore legal protection to unborn life from the moment of conception,” a Right to Life representative told the Times. “This is a marathon.”)

And there are frightening indications that Americans might just nod along. A Gallup poll from last December shows that “61 percent of Americans said abortion should be legal in the first three months of pregnancy, but 27 percent said it should be legal in the second three months, and 14 percent in the final three.” Outlawing second trimester abortions would impact millions of women a year. It should be clear, except to the grossly under-informed, that this isn’t a moderate stance.

The Times’s Erik Eckholm writes, accurately: “By any measure, the practical impact of a 20-week ban is small compared with the potential legal and symbolic effects.” But symbolic and legal impacts can quickly become practical. Twenty-week bans may seem to constitute an incremental shift, but when it comes to abortion, the line moves fast.

This post has been updated.

Nora Caplan-Bricker is an assistant editor at The New Republic. Follow her on Twitter @ncaplanbricker.