“Danielle Deaver was 22 weeks pregnant when her water broke and doctors gave her a devastating prognosis: With undeveloped lungs, the baby likely would never survive outside the womb, and because all the amniotic fluid had drained, the tiny growing fetus slowly would be crushed by the uterus walls. Deaver’s prior pregnancy ended the same way at 15 weeks, and doctors induced her to spare the pain. But this time, when the couple sought the same procedure, doctors could not legally help them. Just one month earlier, Nebraska had enacted the nation’s first fetal pain legislation, banning abortions after 20 weeks gestation. So the Deavers had to wait more than a week to deliver baby Elizabeth, who died after just 15 minutes….”1.
Danielle Deaver’s heartbreaking story is one of many from women in states with new draconian restrictions on later abortion. While women with fetal anomalies or health problems have shared their stories publically, in fact, the majority of women who end their pregnancies after 20 weeks do so for the same reasons that women end their pregnancies in the first trimester – because they feel that it is the wrong time to have a baby, for a variety of complex reasons.
Although the majority of women in the United States who have abortions do so before 12 weeks, every year approximately 1.5 percent of abortions occur after 21 weeks.2 According to the Centers for Disease Control and Prevention (CDC), this percentage has remained relatively constant for 30 years, despite decreases in the number of abortion providers, the advent of medical abortion, and efforts to get women in earlier for abortion care.3 These numbers reflect the reality that some women will always need later abortions.
Why do women present for an abortion after the first trimester? Several studies have documented that young women often do not suspect and therefore identify a pregnancy as early as adults do.4,5,6 In the study of women seeking abortions in the second trimester, 58% reported that they would have liked to have had the abortion earlier.4 The most common reasons women gave for the delay were that it took them a long time to make arrangements (59%), to decide (39%) and to identify that they were pregnant (36%).
It is young and low-income women who disproportionately seek abortions later in pregnancy, and who are most impacted by restrictive laws. Low-income women were twice as likely to be delayed by difficulties in making arrangements.4 Young women often do not identify that they are pregnant until later in pregnancy and, in girls under 15, 15 percent of all abortions occur after 15 weeks, compared to only 5.6 percent of abortions occurring after 15 weeks in the general population.3 The proliferating restrictions on later abortion are increasing the burden and barriers for these vulnerable women and girls.
In 2010, Nebraska passed a law that places extreme restrictions on access to later abortion care. Titled the “Pain-Capable Unborn Child Protection Act”, the law’s restrictions are based on an unfounded theory that a fetus has the capacity to feel pain at 20 weeks. In fact, experts completed comprehensive reviews of all published studies on this issue in the United States7 and in Great Britain.8 These reviews found no evidence that a fetus develops the neural pathways necessary to feel pain until well into the third trimester. Nonetheless, politics trumped science in Nebraska. In 2011, identical bills restricting later abortion were passed in Alabama, Idaho, Indiana, Kansas, Minnesota, and Oklahoma. (Minnesota’s governor vetoed that state’s bill; the bills are now law in the other five states.)
These new laws are more than a threat to women who need later abortions. They present a direct challenge to Roe v. Wade, the 1973 law that made abortion legal in the U.S.
Roe v. Wade allows abortion up to the point of fetal viability at the end of the second trimester of pregnancy (generally understood as 26 weeks after the last menstrual period, or 24 weeks after fertilization, although not defined in the court decision), and holds that any restrictions must allow exceptions to preserve the life and health of the woman. These new laws raise a direct challenge to Roeby:
- Challenging the trimester construction. These laws ban most abortions after 20 weeks post-fertilization.
- Eliminating “viability” as the line for when abortions are legal, and taking away physician discretion to determine viability.
- Limiting the health exception for abortions after 20 weeks. The laws very narrowly define a medical emergency as “a condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function.” The burden of proof that the pregnancy will cause definitely irreversible harm or death is on the woman and her medical team, while, in cases where there is alikelihood of risk to the woman’s life or health, abortion after 20 weeks is not an option.
- Completely eliminating the woman’s mental health as a reason for abortion. The Nebraska law states: “No condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.”
These laws also have no exceptions for fetal anomalies, rape, or incest.
Advocates for women’s health must mobilize to educate ourselves and our peers about the issue of later abortion and the impact of legislative restrictions on young and low-income women and women who have pregnancy complications. As of April 2012, a bill restricting abortion after 20 weeks was signed into law in Georgia. A bill restricting abortions after 18 weeks has become law in Arizona. Similar bills are pending in several other states. We are losing the right to abortion week by week, state by state. It is time to act.
How late in pregnancy abortions should be permitted and carried out is a matter of great controversy among almost everyone – except the women who need them.
– Marge Berer, Reproductive Health Matters
This article was written by: Susan Yanow, MSW
Susan Yanow, MSW is a long-time reproductive rights activist, Ms. Yanow was the founding Executive Director of the Abortion Access Project. Ms. Yanow is currently a consultant to several U.S and international reproductive rights and health organizations that work to advance access to abortion. She serves on the Boards of the ACLU of Massachusetts, NARAL ProChoice Massachusetts, the Cambridge Commission on the Status of Women, and Chennai Children.
1. Susan Donaldson James, “ABC News” March 14, 2010. Retrieved February 1, 2012 fromhttp://abcnews.go.com/Health/20-week-abortion-ban-nebraska-oklahoma-fetus-feel/story?id=13116214.
2. Jones RK, Zolna MR, Henshaw SK, et al., “Abortion in the United States: Incidence and Access to Services, 2005”, Perspect Sex Reprod Health 2008; 40:6-16.
3. Pazol K, Gamble SB, Parker WY, et al., “Abortion surveillance—United States 2006”, Morbidity and Mortality Weekly Report Surveillance Summary 2009; 58:1-35.
4. Finer LB, Frohwirth LF, Dauphinee LA, et al., “Timing of steps and reasons for delays in obtaining abortions in the United States”, Contraception 2006; 74:334-44.
5. Foster DG, Jackson RA, Cosby K, et al., “Predictors of Delay in Each Step Leading to an Abortion”,Contraception 2008; 77:289-93.
6. Kiley JW, Yee LM, Niemi CM, et al., “Delays in Request for Pregnancy Termination: Comparison of Patients in the First and Second Trimesters”, Contraception 2010; 81:446-51.
7. Lee SJ, Ralston HJ, Drey EA, et al., “Fetal Pain, A Systematic Multidisciplinary Review of the Evidence”,JAMA 2005; 294(8): 947-54.
8. Royal College of Obstetricians and Gynaecologists, “Fetal Awareness: Review of Research and Recommendations for Practice”, London: Royal College of Obstetricians and Gynaecologists, March 2010.