August 2, 2013 — Laws to ban abortion around 20 weeks after conception are a "potent new tactic" for antiabortion-rights activists who see the measures as a path to a Supreme Court challenge, the New York Times reports.
The court has affirmed in multiple decisions that women have a right to an abortion until fetal viability, which is generally considered to be 24 weeks. However, abortion-rights opponents think the court's decision in a 2007 case upholding a federal ban on an abortion procedure signals that the justices would approve an earlier standard "if there was a compelling moral reason," according to the Times.
To date, 12 states have enacted laws banning abortion around 20 weeks, and the House recently passed a measure that would extend such a ban nationwide. Abortion-rights supporters say the measures are clearly unconstitutional, and judges have struck down the three state laws that have gone to court so far.
According to the Times, the ban's rationale is based on "disputed scientific theories" -- supported by a "small minority of scientists" -- that contend fetuses can experience pain earlier "than commonly assumed." The majority of scientists and medical associations agree that it is impossible for fetuses to perceive pain until certain brain developments occur several weeks later.
The Times notes that the bans' practical impact "is small compared with the potential legal and symbolic effects." All of the enacted bans but one prohibit abortions at the 20th week after fertilization -- which is 22 weeks after the last menstrual period, the most common way of dating a pregnancy. Thus, the "actual gap between" a 20-week ban and the 24-week viability standard is about two weeks -- a window that accounts for "several thousand abortions, at most, out of an estimated 1.2 million performed every year," according to the Times.
However, Center for Reproductive Rights President Nancy Northup argued, "It may be a small number of women in those weeks, but for each of them, it matters a great deal." She noted that many birth defects are only discernible in the second trimester and are a common reason for abortions later in pregnancy.
Battle for Supreme Court, Public Opinion
Backers of the bans contend that abortion-related opinions by Justice Anthony Kennedy -- a key swing vote -- suggest he might be supportive of such legislation. Kennedy authored an opinion in the 2007 case upholding a federal ban on the procedure opponents call "partial-birth" abortion.
However, Northup and legal experts said the court in the 2007 ruling emphasized that the federal law would not significantly burden abortion rights because other methods remain permissible. By contrast, the 20-week laws would outlaw all methods.
Meanwhile, supporters of the laws see them as a valuable strategy for influencing public opinion toward their ultimate goal of banning abortion. "Any time we talk about developmental landmarks of the unborn child, ... that gets the public to take a closer look at abortion," said Mary Spaulding Balch, state policy director of the National Right to Life Committee (Eckholm, New York Times, 8/1).