Unconstitutional, Trump-Backed 20-Week Abortion Ban Goes Down in Senate

The White House on Monday afternoon formally endorsed the bill, which is based on anti-choice myths about abortion care.

The vote came on the eve of President Donald Trump’s second State of the Union address. Saul Loeb / Getty

An unconstitutional 20-week abortion ban notable for attempting to legitimize junk science and foist onerous reporting requirements on rape and incest survivors came to a halt on Monday in the U.S. Senate.

The perennial GOP-sponsored legislation (S 2311) failed, 51-46, to reach the Senate’s 60-vote threshold typically required to advance controversial legislation around a filibuster. GOP Sens. Susan Collins (ME) and Lisa Murkowski (AK), who have mixed voting records on abortion rights, voted against the 20-week ban. Three Democrats—Sens. Joe Manchin (WV), Joe Donnelly (IN), and Bob Casey (PA)—crossed party lines to vote for it. Manchin and Donnelly both serve on the federal advisory board of Democrats For Life of America, an anti-choice group that uses conservative talking points and medically unsupported falsehoods about reproductive health care.

Senate Majority Leader Mitch McConnell (R-KY) scheduled the vote for the eve of President Donald Trump’s State of the Union address. Doing so gave Trump, who had vowed to sign the ban, more favor with the anti-choice activists he has long courted and more ammunition to criticize Democrats on the national stage. The White House on Monday afternoon formally endorsed the bill in a statement of administration policy.

The so-called Pain-Capable Unborn Child Protection Act actually prohibited abortion at 22 weeks’ gestation, or 20 weeks “post-fertilization,” as the legislation says. The bill text made a litany of distorted and outright false claims about fetal pain. Major medical groups, including the American Congress of Obstetricians and Gynecologists and the British Royal College of Obstetricians and Gynecologists, along with the authors of a review of fetal pain studies in JAMA: The Journal of the American Medical Association, agree that a fetus does not develop to the point where it can feel pain until the third trimester, which begins around week 28 of pregnancy. Doctors who testify otherwise often have a history of anti-choice activism, as Rewire‘s False Witnesses project has documented.

The few exceptions to the ban contained contradictory language and erected their own set of financial, geographical, and emotional barriers to abortion care. Though the legislation made exceptions for cases of life endangerment, it excluded “psychological or emotional conditions.” Rape survivors who needed an abortion would be required to obtain counseling or medical treatment for related injuries at least 48 hours prior, and the care could not occur at an abortion clinic. And the bill ordered cases of rape and incest against a minor to have been documented with “a government agency legally authorized to act on reports of child abuse” or “a law enforcement agency.” The bill text was unclear about who would be responsible for reporting in those cases.

The ban also required that an abortion provider only terminate a pregnancy in a way that “provides the best opportunity for the unborn child to survive.” Related provisions echo a recent House-passed bill propping up the myth that infants are “born alive” after abortions and routinely murdered by abortion providers. Abortion providers in violation of the 20-week ban faced up to five years in prison, along with potential civil penalties.

Senate Republicans no doubt knew that their bill would ultimately fail, as it did in 2015. But the vote was always meant to be about politics, not policy. McConnell forced vulnerable Senate Democrats in red states to go on the record on a highly partisan abortion ban ahead of the midterm elections.

“We’ve talked to him many times about this,” Susan B. Anthony List President Marjorie Dannenfelser told Rewire shortly before Republicans in the U.S. House of Representatives passed a related 20-week ban last October. McConnell “has no problem bringing it up on the floor as an important thing to get people on record for, to have the conversation, to build the vote ’til next time.”

Abortion foes are hoping that “next time,” Republicans will have increased their Senate majority and ended the legislative firewall between a nationwide prohibition on legal abortion care at 20 weeks—and eventually, on legal abortion care entirely.

Legal experts believe 20-week bans are unconstitutional because they undermine a key provision of Roe v. Wade, the 1973 U.S. Supreme Court case that established the right to an abortion until fetal viability. Fetal viability differs for each pregnancy, but generally occurs around 24 weeks’ gestation.