The Draconian Anti-Abortion "Pain-Capable Unborn Child Protection Act" Passes The House and Heads for the Senate

While the House has introduced multiple attempts at 20-week abortion bans, none have been as dramatic as this one.
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May 18, 2015
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abortion, seriously just stop talking now, republicans, gender politics, Congress

Congressional Republicans enjoy fiddling while Rome burns and repeatedly introducing pointless and infuriating anti-choice legislation that usually fails, but last week, they got one over on America with the "Pain-Capable Unborn Child Protection Act."

H.R. 36 would amount to a national ban on abortions past 20 weeks, regardless as to the alleged exceptions built into the bill. It is horrific, it is awful, and it is an incredibly ominous sign of the growing stranglehold the right has on the United States. As we face down the 2016 election, it also raises the very serious specter of even more vicious anti-choice laws, because even if this gets smacked down by the Senate or the President, there will be more.

The American right is determined to ban abortion in the United States, and it's approaching the cause from two angles. The fetus fundamentalists are pushing for immediate outright bans across the board with no exception, while the "moderates" are trying to backdoor their way into blanket bans. Both have the same end goal, but the "moderates" make their legislative propositions seem almost palatable when compared to the alternatives.

This bill is a classic example — Republican women who actually opposed a similar bill in January by and large voted for it, and even some Democrats crossed the aisle to support it (if you want to see how your representative voted, here's the roll call).

Before plunging into the nightmarish terms of H.R. 36, a quick refresher on 20 week bans: Such proposals typically argue that fetuses can feel pain after 20 weeks, and therefore that performing abortions at that gestational age would constitute cruelty. There is, unsurprisingly, considerable debate on the subject of fetal pain. A detailed literature review indicates that the neural structures required to feel pain start developing at around 23 weeks, but that fetuses can't really feel pain until 29-30 weeks. This doesn't stop Republicans from holding up bloody fetus signs and crying foul on liberal torture of the unborn.

Notably, the kind of language used around these bills is also some brilliant public relations. Rather than referring to fetuses as fetuses, they're "preborn," "unborn children," "the innocent," or "babies." All of these terms are designed to position a fetus as equivalent to a human life, and they dehumanise the pregnant person involved, who is little more than an incubator for the unborn — an issue that has been quite literal in a number of cases involving nonresponsive patients without hope of recovery who have been kept on life support in order to deliver the fetuses they're carrying.

People with wanted and anticipated pregnancies who are excited about what lies ahead may well refer to their fetuses as "the baby" or with some other affectionate name acknowledging the potential of the developing human within, but that's markedly different than the language used to restrict the freedom of choice and bodily autonomy. Pregnant people can use whatever terms they like to refer to their own fetuses, but forcing those terms on other people is unacceptable, and bills with dramatic names like this one are deeply disturbing when it comes to the depths of their rhetoric and manipulative framing. Who, after all, would want to vote against a bill purporting to protect innocent human beings with the capacity for experiencing pain?

And how big is the concern about abortions past a gestational age of 20 weeks? According to the Guttmacher Institute, only 1.2 percent of abortions performed in the United States involve fetuses over 20 weeks. The vast majority of these abortions involve the tragedy of a wanted pregnancy that has to be terminated to protect the life of the parent, or because of a severe complication that compromises the viability of the fetus.

In the case of fetal death, abortion is imperative to prevent infection and death (in addition to the trauma of carrying a dead fetus to term and attempting to deliver), and in some cases, fetal anomalies incompatible with life go undiscovered until later in a pregnancy. Abortion in these instances protects parents from the risks of fetal death or limits suffering for the fetus, for parents who feel strongly about the idea of delivering an infant who lives only minutes or hours in excruciating pain and misery.

While everyone has a different emotional response to abortion depending on why and when it was performed, abortions over 20 weeks are often done with a very heavy heart and they're incredibly emotionally stressful. Legislation like this adds to that stress and shames those who need to make decisions that are sometimes extremely difficult; terminating a wanted pregnancy that you were excited for is a taboo and troubled subject in American culture, and many people lack the courage to speak out about such procedures thanks to the stigma created by laws like this one, which turn them into monsters instead of people exercising a private and difficult medical choice.

The bill creates a blanket ban on abortions over 20 weeks, but, don't worry, it has exceptions!

(1) where necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, illness, or injury, excluding psychological or emotional conditions; or (2) where the pregnancy is the result of rape, or the result of incest against a minor, if the rape has been reported at any time prior to the abortion to an appropriate law enforcement agency, or if the incest has been reported at any time prior to the abortion to an appropriate law enforcement agency or to a government agency legally authorized to act on reports of child abuse or neglect. Permits a physician to terminate a pregnancy under such an exception only in the manner that provides the best opportunity for the unborn child to survive, unless that manner would pose a greater risk than other available methods would pose of the death or substantial and irreversible physical impairment of a major bodily function, excluding psychological or emotional conditions, of the pregnant woman.

The standards set for the first "exception" are very clearly purposefully vague. The level of endangerment isn't made clear, and it doesn't specify whether fetal death or serious fetal anomalies that could cause complications might be counted as health risks. Moreover, the bill crassly excludes the psychological and emotional repercussions of being forced to complete a pregnancy against your will — as for example if a a parent is distressed about a developing fetus with a condition that will only allow her to survive for a few minutes after delivery.

The second exception is particularly hair-raising. Under the language of the bill, in order to perform an abortion in the case of rape or incest, doctors would need to confirm that the incident had been reported. For rape and incest victims/survivors who do not wish to report for any reason, abortion would be functionally inaccessible. For those who aren't ready to deal with the trauma of reporting while also managing an unwanted and upsetting pregnancy, the bill says, too bad.

Moreover, the stipulation that physicians provide medical interventions and life support is extremely troubling. It's also a hallmark of similar legislation in the US, which has prioritized fetal survival over the lives of patients. The comment about "psychological and emotional conditions" is especially cold. For those who are deeply disturbed and upset about the thought of having the product of rape or incest given preferential treatment in a clinical setting, this bill says, too bad. Mental health matters less than the "unborn" under the metric of this abhorrent legislation.

The story doesn't end there — under the bill, patients would face a number of restrictions including waiting periods and proof that they're eligible under the exclusions before they could actually receive abortions. This adds to the expensive and emotional stress of the procedure, and it's also likely to make doctors understandably nervous about providing abortion care. If they potentially face penalties for offering basic clinical services to patients who need them thanks to the terms of a vague and troubling bill, that's bad news for patients.

With a pledge to bring it up in the Senate, Mitch McConnell is hoping to earn brownie points, though the President has already indicated that he'll veto it if it crosses his desk. At The Atlantic, however, Charles C. Camosey points out that this might be exactly what Republicans want: If the bill fails, they can use it as a fundraising rallying cry — "see how close we came to banning abortion in 2015? Give us money and vote for us in 2016, and we'll make it a reality."

Photo credits: Edson Chilundo, Flickr; Debra Sweet, Flickr.