Not All “20-Week” Bans Are Created Equal: A Closer Look at How Abortion Bans Diverge from Medical Protocol and Put Women at Risk

There is a lot of confusion about 20-week abortion bans, and for good reason. Not only do they pick arbitrary dates based on medically-disproven claims of "fetal pain," at least one is so mixed up it shows that "fetal pain" is not even the basis of the ban.

One of the most recognized accessories of the expecting mother is the “pregnancy ticker.” It’s that little timeline that she often puts on her facebook page, her personal website, baby page, or home page of her computer that shows where she is in her pregnancy during the long 40 weeks waiting to give birth. Some provide developmental facts. Some explain how big the baby is compared to fruit. Some just tell you how many days you are likely to have left before you get to welcome your baby into the world.

Being pregnant is like having your own alternate timeline from the world. Your life is suddently counted off in weeks. You learn for the first time that really, a pregnancy is ten months long, not nine. You discover that no one really has a definite consensus as to when the first trimester ends.

And yes, by the time you actually ovulate, you are already two weeks pregnant.

Fetal and embryonic age is something that often gets exchanged and played with when it comes to anti-abortion tactics and law. When trying to prove developmental milestones, anti-choice advocates often swap post-fertilization age for gestational age in order to make it appear as if the pregnancy is much more advanced than it actually is. But to the medical community, pregnancy is defined at gestational age, calculated from the first day of a woman’s last menstrual period (LMP). Because early ultrasounds aren’t a standard part of prenatal care (unless you want to end a pregnancy and a legislator decides to force one on you), LMP is the most reliable way to accurately date a pregnancy and is standard definition. It is that designation that makes a pregnancy “40 weeks” long, and it is that standard by which all OB-GYNs will date a pregnancy.

It was an attempt to deviate from that standard that made Americans United for Life And National Right To Life Committee redefine when pregnancy begins when crafting the first “Pain-Capable Unborn Child Act” for Nebraska

The bill reads: 

No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing the abortion or by another physician upon whose determination that physician relies, that the probable postfertilization age of the woman’s unborn child is twenty or more weeks

The wording did two things—first, it redefined pregnancy as beginning at the moment of fertilization rather than by gestational age, reinforcing their idea that a fertilzed egg is a “person” and overriding the traditional medical calculation of pregnancy as gestational age.  Secondly, it set up the “20-week ban” nomenclature, making it appear as if abortion were banned at 20 weeks when technically, based on the medically accepted gestational terminology, it is in fact banned at 22 weeks.

[These bills are based on a concept of “fetal pain” that does not exist. A review of evidence by the British Royal College of Obstetricians and Gynaecologists found that it is not possible for a fetus to “feel pain” any time before 24 weeks at the earliest.]

Most states in 2011 that passed the “Pain-Capable Unborn Child Act” model legislation worked from the same bill, all banning the procedure at 22 weeks gestation with the same language:

No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable postfertilization age of the unborn child of the woman is 20 or more weeks

Those states are Alabama, Idaho, and Oklahoma.

Kansas also passed a bill with a ban at the same point, but worded theirs differently.

(d) “Gestational age” means the time that has elapsed since the first day of the woman’s last menstrual period.

(f) “Pain-capable unborn child” means an unborn child having reached the gestational age of 22 weeks or more.

New Sec. 3. (a) No person shall perform or induce, or attempt to perform or induce an abortion upon a pain-capable unborn child unless such person is a physician and has a documented referral from another physician not legally or financially affiliated with the physician performing or inducing, or attempting to perform or induce the abortion and both physicians provide a written determination, based upon a medical judgment arrived at using and exercising that degree of care, skill and proficiency commonly exercised by the ordinary skillful, careful and prudent physician in the same or similar circumstances and that would be made by a reasonably prudent physician, knowledgeable in the field, and knowledgeable about the case and the treatment possibilities with respect to the conditions involved…

Kansas was the first state to use “gestational age” rather than “post-fertilization age” as its predecessors did, and they used it correctly. Like the other states, it banned abortion at 20 weeks postfertilization, which is also 22 weeks since last menstrual period.

As 2012 began and more states looked to pass the same bill, efforts became more scattered.  Virginia used the same model legislation and wording as a majority of the 2011 states did. So did New Hampshire. Kentucky, West Virginia, Arkansas and  Mississippi. Even the proposed ban for Washington, D.C. used the majority bill and used it correctly.

On the other hand, Louisiana actually tries to redefine viability, but at least manage to get the dating terminology correct:

“Viable” and “viability” each mean that stage of fetal development when, in the reasonable medical judgment of the physician based upon the particular facts of the case before him, and in light of the most advanced medical technology and information available to him, there is a reasonable likelihood of
sustained survival of the unborn child outside the body of his mother,with or without artificial support; provided that there shall be a legal presumption that an unborn child is viable when the unborn child has reached the probable post
fertilization age of twenty weeks (the equivalent of a gestational age of twenty
two weeks or greater).

Two states, however, deviated from the model bill and that is where the confusion, either purposefully or unintentionally occurs.

The Georgia ban that recently passed has a medical error in its bill, one that it repeats in the text. 

(4.1) Probable gestational age is an estimate made to assume the closest time to which the fertilization of a human ovum occurred and does not purport to be an exact diagnosis of when such fertilization occurred

5) “Probable gestational age of the unborn child” means what will, in reasonable medical judgment and with reasonable probability, be the postfertilization age of the unborn child at the time the abortion is planned to be performed or induced, as dated from the time of fertilization of the human ovum.

That is not medically accurate. Gestational age has always been at the point of last menstrual period. What they are defining is the anti-choice created concept of post-fertilization age being a point of defining when pregnancy begins.

Despite incorrectly defining their medical terms, Georgia still manages to place the ban at the same points as the other states—20 weeks postfertilization or 22 weeks gestation (although not based on their definition of gestation).

No abortion is authorized or shall be performed after the second trimester if the probable gestational age of the unborn child has been determined in accordance with Code Section 31-9B-2 to be 20 weeks or more

Since they have defined “gestational” to be “post-fertilization” they did in fact pass a 22 week gestational ban, despite all of the inclarities of their legislation. 

Arizona took a different route.  They used gestation as it is correctly defined, but used gestational age in their ban rather than the model legislation’s “post-fertilization” wording.

A.  Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child.  In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.

B.  Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.

C.  A person who knowingly violates this section commits a class 1 misdemeanor.

Many things could have happened here.  Arizona could have copied Georgia’s language but, not having added in the additional language that (incorrectly) redefines gestational age, accidentally removed two weeks from the bill, making abortion illegal at 18 weeks postfertilization rather than the benchmark of 20. Or they could have taken the opportunity to roll the ban back a few weeks just to see what would happen. It may have been a purposeful move to try harder to push for someone to take the law to court, or it could be another example of legislators who don’t know much about actual reproduction and women’s bodies just getting things wrong and not knowing what they’ve done. These laws are so confused it is perhaps not surprising, therefore, that media outlets also are reporting on the bans inaccurately, as did this Reuters piece.

However, the Arizona ban, because it narrows the timeline even more, not only puts more women in jeopardy of running afoul of the law as most anatomy scans don’t occur until the point in which abortion is no longer allowed, but also shows that even if fetal pain was a legitimate concept, it’s not really the basis for the ban.  After all, according to their own “research” they are banning abortion two week prior.

The real result of going through these pieces of legislation is that it abortion bans based on a period of time in a pregnancy simply don’t make sense. Picking arbitrary dates and deciding that the day before it should be legal and the day following it shouldn’t rejects the entire concept of medicine. Two women at the same exact day post-fertilization could have two very different fetuses developmentally, one with lungs that are mature enough to inflate and one who simply will not be able to breathe, even with assistance. 

The decision to terminate a pregnancy should always be between a woman and her doctor, not a politician, and should be based on the medical needs of each individual case, not a cutoff point on the “My Baby This Week” ticker.