‘Fetal Pain’ Is the Next Battle for Pro-Lifers
As pro-choicers celebrate the Supreme Court’s overturning of a restrictive Texas abortion bill, their foes are trying to figure out what to do next.
Today was one of the worst days for the pro-life movement since Roe v. Wade. Yet the fight over abortion rights is far from over—and activists looking to restrict abortion rights are already planning new strategies.
On Monday, the Supreme Court overturned two provisions of Texas’ controversial pro-life bill HB-2 in the Whole Women’s Health v. Hellerstedt ruling. Specifically, the Court found the state’s requirement on abortion providers to have admitting privileges at nearby hospitals—and on abortion facilities to meet the same standards as ambulatory surgical centers—constituted an “undue burden” on women seeking abortions. In the wake of HB2’s passage, more than half of the state’s 42 abortion facilities closed down, and some women had to travel hundreds of miles to get the procedure.
Tough regulations on abortion clinics and providers have resulted in a wave of clinic closures in red states around the country—and gave the pro-life movement win after win. These laws are arguably the most significant legislative legacy of the 2010 Tea Party wave that flipped numerous state governments to single-party Republican control. But thanks to the Supreme Court, many of those laws will be tossed out. So it’s hard to overstate the significance of Monday’s 5-3 ruling.
Now activists looking to limit abortion rights are regrouping and planning ahead. Their biggest source of optimism is that the court didn’t touch Texas’ ban on abortions after 20 weeks, which was also part of HB2. So their next wave of legislative efforts will likely focus on passing 20-week bans in other states, as well as banning “dilation and evacuation,” a common second-trimester abortion procedure.
That means we’re about to see a major shift in the debate over abortion rights. Before Whole Woman’s Health v. Hellerstedt, much of the debate centered on whether abortion clinic regulations like those in Texas protected women’s health. Pro-life groups argued the regulations did, but the Supreme Court wasn’t convinced. So now, the fight will shift to whether there’s a compelling state interest in preventing fetal pain, a core argument in the case for banning dilation and evacuation abortions, and for banning abortions after 20 weeks.
A comprehensive review of fetal pain studies in the Journal of the American Medical Association concluded that “pain perception probably does not function before the third trimester [after 28 weeks.]” In their own review, the U.K.’s Royal College of Obstetricians found that the cortical connections necessary for pain perception “are not intact before 24 weeks of gestation.”
But such studies have not deterred pro-life advocates. John Seago, the legislative director for Texas Right to Life—and part of the team that successfully lobbied for the passage of HB2 back in 2013—said he welcomes the shift from a focus on women’s health to a focus on fetal pain.
“Let’s focus on the fetal life,” he said. “I think that’s a good thing. That’s where the focus needs to be, culturally, legislatively, legally—we’ve gotten on these tangents about access, about undue burdens, about clinic regulations, whereas the most important question in the abortion debate is: What do we think about the ethical status of elective abortion? Is this something we want to allow in our society?”
Roe didn’t completely close the door on that question, he believes.
“They ruled that in Roe,” he said, “but they’ve been undermining that kind of ruling ever since.”
Seago said Texas Right to Life will push for the state to ban dilation and evacuation abortions in 2017.
Still, that doesn’t mean the movement won’t be on defense after the Supreme Court ruling. Seago said he expects another Texas requirement—that abortion providers be licensed physicians—to face a legal challenge. In 2013, California passed legislation that allows specially-trained nurse practitioners, midwives, and physician’s assistants to perform first-trimester aspiration abortions.
Pushing for 20-week bans in other states is a top priority for the Susan B. Anthony List, another prominent national pro-life group.
Those bans could face an uphill battle in federal court. In May 2014, the Ninth Circuit shut down Arizona’s 20-week ban, with the Supreme Court later refusing to hear an appeal. The following May, the Ninth Circuit again determined that a 20-week ban was unconstitutional—this time in Idaho.
Sue Swayze, the coordinator of the group’s National Pro-Life Women’s Caucus, said her group will work to pass 20-week bans in Ohio, Kentucky, and Florida. Republicans control both chambers of the Ohio and Florida state legislatures, and all three governorships. Democrats narrowly control the Kentucky House of Representatives.
Swayze said she’s particularly optimistic about Kentucky. In 2015, the state made Matt Bevin its first Republican governor since 2007. And then it passed its first abortion regulation in a decade: a rule requiring a 24-hour waiting period for women seeking abortions. Swayze said pro-life organizations will look to further tighten abortion rules in that state during its next legislative session, and may also aim to cut funding for Planned Parenthood.
“They kind of have some make-up to do, in terms of what other states have been doing in the last decade or so with clinic regulations and health and safety standards,” she said.
“It’s exciting to watch,” she added.
And Carol Tobias, the president of the National Right to Life Committee, which provides model language for 20-week bans, said her group will push for more states to ban dilation and evacuation abortions next year. The procedure was legal in all 50 states until 2015, when Kansas became the first state to ban it. Since then, six states total have banned the procedure. Oklahoma and Kansas’ bans are on hold because of legal challenges. West Virginia’s ban is currently in effect, while bans in Alabama, Louisiana, and Mississippi will be implemented later this year barring legal prevention.
Tobias added that the group also hopes more states will pass requirements that physicians must show women ultrasound images of their fetuses, or at least tell them that they can see such images if they like, before allowing an abortion.
So even as abortion rights advocates are celebrating today’s ruling—it’s a massive victory for them—the abortion wars are going nowhere.
“They don’t want a debate over the fetal life state interest,” Seago said. “They wanted a debate over the maternal health state interest. And it seems like they’ve won that debate, so now let’s kind of force their hand and have a discussion about the most important question in the abortion debate.”