Why the federal 20-week abortion ban is up for a vote — again

Jennifer Gerson Uffalussy
Contributing Writer
Photo: Olivier Douliery/Getty Images

On Tuesday, the House of Representatives will vote on H.R. 36, the Pain Capable Child Protection Act. If the bill — which was passed by the House in 2015 but then failed to pass in the Senate — were to become a law, abortion would be banned under federal law in the U.S. after 20 weeks post-fertilization.

The only exceptions would be for cases in which the woman’s life was endangered, or where the pregnancy is the product of rape or incest, though it stipulates that rape survivors must undergo a 48-hour waiting period before accessing abortion care, and only provides an exception in cases of incest for minors seeking abortion care.

“At the state level, over a dozen states have enacted these types of 20-week bills and frankly, Congress is long overdue to pass a federal version,” Melanie Israel, a research associate in the DeVos Center for Religion and Civil Society at the conservative Heritage Foundation, tells Yahoo Lifestyle. “We’re seeing a lot of states starting to prioritize this issue and there is a very clear consensus with Americans that they would like to see abortion restricted to the first trimester, and they say this regardless of political party affiliation. This really shouldn’t be very controversial.”

Israel points to a January 2017 poll conducted by Marist Poll for the Catholic men’s charitable organization the Knights of Columbus that found 74 percent of those polled to say they want abortion restricted to the first trimester. The Knights of Columbus poll also found that 74 percent of those polled who were in favor of restrictions on abortion access would like to see the Supreme Court rule in favor of these type of restrictions.

Polling conducted by the Pew Research Center in July 2017, however, found that public support for legal abortion remains as high at it has been in two decades of polling, with 57 percent of Americans believing that abortion should be legal in all or most cases, while 40 percent say it should be illegal in all or most cases. And polling done by STAT News and Harvard University in August 2016 found that 59 percent of people support access to abortion after 24 weeks if there is a serious possibility that a fetus has microcephaly, the fetal abnormality caused by the Zika virus.

“It’s a bill that would protect women and their unborn children from late-term abortion,” says Israel, adding that seeing a vote for a federal abortion ban should not come as a surprise to voters. “Trump, on the campaign trail, made several specific promises when it comes to life issues, and a 20-week bill is one of those issues,” she says. “This is something he has committed to signing into law if it comes across his desk.” 

Democratic leadership, meanwhile, has vowed to halt the bill should it reach the upper chamber.

In a statement, Sen. Patty Murray, D-Wash., the ranking member of the Senate’s Health, Education, Labor and Pensions (HELP) Committee, tells Yahoo Lifestyle, “This is an extreme, unconstitutional attack on women’s health, and it’s going nowhere in the Senate. It’s beyond disappointing that Republican leaders would choose to prioritize playing politics with women’s health and rights — especially with so many pressing challenges in front of us.”

Legal and medical experts say that such a ban is unconstitutional, and could harm patients and providers alike.

Amy Friedrich-Karnik, senior federal policy adviser for the Center for Reproductive Rights, tells Yahoo Lifestyle that 20-week bans are inarguably the latest “trend” in restricting abortion access, and 21 states have some version of 20-week ban laws on the books, even though these laws are not in effect in all of these states because of court orders.

She explains that there is a clear track record from the Supreme Court that abortion is legal before viability, and that bans on abortion before viability are unconstitutional. “Before viability, women have the right to end a pregnancy as they choose. And science has made it clear that at 20 weeks, a fetus is not viable,” says Friedrich-Karnik.

Dr. Anuj Khattar, a fellow with Physicians for Reproductive Health, points out the burden restrictions to abortion access place on women’s access to care, sharing the story of a patient he saw recently, who came in believing she was 18 weeks pregnant. Ultrasound revealed, however, that she was in fact 21 weeks pregnant — and, if the Pain Capable Child Protection Act we to pass, ineligible for an abortion. 

The woman, Khattar says, told him that she had wanted to come in earlier but couldn’t leave her home because she already had a small child to care for — and also had an abusive partner who restricted her ability to leave their home. He had just been sent to jail the prior week, thus creating the opportunity for her to finally access the care she wanted.

“It was so sad for me that she had to delay her care because of the relationship she was in,” Khattar says. “But it was really powerful that we could provide her with the care she needed so she could move on with her life. Women know what they need, and we should trust them.” 

Dr. Julie Bindeman, a reproductive psychologist, is one of those women. A year and a half after having their first child — a son, in 2009 —  she and her husband decided to try to grow their family. She quickly became pregnant — and though she thought she had miscarried eight weeks into that pregnancy, she later learned that she had not but had rather experienced some bleeding in the uterus that was not connected to the pregnancy. With relief, Bindeman watched her pregnancy progress. At 20 weeks, she went in for her anatomy scan ultrasound. Because of the complications with her uterine bleeding earlier in her pregnancy, she was sent to a radiologist office to have the scan performed. Driving back to her ob-gyn’s office from the radiologist’s office that day, Bindeman recalls excitedly talking with her husband about baby names and what their son would be like as a big brother to a little brother. (At the scan, the radiologist had informed them they were having another boy.)

But when Bindeman and her husband arrived at her ob-gyn’s office, the first thing her ob-gyn said to the couple was, “I’m so sorry.”

“The first words out of our mouths were, ‘I guess we’ll have to have three so we can try for a girl!’ And I saw this complete lack of understanding settle onto her face. And she said, ‘They didn’t tell you anything at the radiologist’s office? They saw some things with the brain,’” Bindeman recalls to Yahoo Lifestyle.

Further testing and meeting with a maternal-fetal medicine specialist, genetic counselor, pediatric radiologist, and pediatric surgeon revealed that their son’s brain ventricles measured two times the size at the top end of the normal range. He was diagnosed with hydrocephalus, and the excess cerebral spinal fluid building up in his brain meant that the other parts of his brain couldn’t form.

“We had been told we could continue with the pregnancy or that termination was an option. My husband and I started talking, figuring out what our parenting boundaries were, what we could afford to do, what we had the bandwidth for. We knew our decision would depend on the diagnosis we were ultimately given and what our son’s quality of life would be,” Bindeman says.

And what they were ultimately told was that even if their son were to survive to full term, which was still not a given, his quality of life would be that of a 2-month-old for his entire life. He would never be able to walk or talk or feed himself.

“I burst into tears. This was not the life I would want for anyone, or for my family and my son. There were so many players involved,” she shares.

Bindeman and her husband chose to terminate the pregnancy, and were given the choice of traveling from where they lived in the D.C. area to New Jersey to have a surgical abortion performed by one of the few physicians who would perform the procedure after 20 weeks gestational age, or induce labor and deliver and have a stillbirth. The couple chose the latter route, and Bindeman was induced the day after Thanksgiving in 2009. She gave birth early that Saturday morning. She was told the abnormality her fetus had suffered during this pregnancy was likely a fluke, a “one-in-a-million chance,” and she would heal and be able to achieve a healthy pregnancy in the future.

Which is what Bindeman did, getting pregnant once again — and then learning at 17 weeks gestation that the fetus was showing signs of the same abnormality.

“So once again, I was faced with this horrible, gut-wrenching decision,” Bindeman says.

Because she was then only 18 weeks pregnant, she was able to have a surgical abortion in Washington, D.C. She describes her surgeon as “so incredible and so kind and so empathetic. I am forever grateful to him.”

Further testing revealed that Bindeman and her husband must have had some recessive gene combination that caused the hydrocephalus. As a result, there was a 25 percent chance of the condition occurring in any pregnancy Bindeman and her husband achieved — and the condition would never be able to be detected in a pregnancy before 19 weeks.

Bindeman went on to have two subsequent, healthy pregnancies — and yet, she explains that today, she continues to reckon with the fact that she doesn’t know which, if any, of her children are carriers of this gene because they do not know what the gene is. “But there is a 50 percent chance that any one of them is a carrier,” she adds.

This is why she says the vote, yet again, over federal 20-week abortion ban is not only personal because of her own experience of needing late-term abortion care twice, but because it might be a reality for her own children one day too.

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