The Political Disagreement Over a Health Exception for Later Abortions
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In recent years, Democrats in Congress have introduced a bill that would bar states from prohibiting abortion after a fetus is viable outside the womb in cases where the patient’s life or health is at risk. Republicans claim that the bill would allow abortion on demand “up to the moment of birth.”
Democrats counter that’s not what they support.
The disagreement centers on what each side interprets the “health” exception to mean, Mary Ziegler, a professor of law at the University of California, Davis and the author of six books on the abortion debate and the law, told us. “Republicans view those health exceptions as sort of like a blanket permission to have an abortion whenever you want.” Democrats say “it’s an exception for life or health.”
While there could be some Democrats who don’t support post-viability restrictions, Ziegler said, “that’s not the consensus opinion.”
Those details are missing from many instances in which this claim has been made.
Recently, on CNN’s “State of the Union,” Republican Sen. Lindsey Graham said that Democrats “introduced legislation that allowed abortion on demand with taxpayer-funded — you paying for it, the taxpayer, up to the moment of birth. That was their position in Washington. That’s the law they want to pass. And nobody in your business will talk about it.”
Later on the same April 23 show, host Dana Bash asked Democratic Sen. Amy Klobuchar if that was her position. “No, it is not,” Klobuchar said. “I think Sen. Graham knows where the American people are on this. They are with Democratic leaders. And the people of this country believe that the women of this country should be able to make their own decisions about their health care, and not politicians.”
We heard the same GOP claim from multiple speakers during the 2020 Republican National Convention, including from President Donald Trump and Vice President Mike Pence, who said that Joe Biden supported abortion “right up until the moment of birth.”
We wrote then that Biden, and many other Democrats, supported codifying Roe v. Wade, the 1973 Supreme Court ruling that established a constitutional right to abortion. The court opinion said the government can’t interfere with a right to an abortion in the first trimester of pregnancy, but it could restrict or prohibit abortions once a fetus is viable outside the womb. However, the ruling, and the companion case Doe v. Bolton, required post-viability exceptions for the life and health of the mother, meaning both physical and mental health.
Back in 2020, two years before the high court overturned Roe, many states had enacted laws challenging these requirements, some of which were struck down by the courts and some of which remained in effect, according to a breakdown of the various state laws by the Guttmacher Institute, a reproductive health research group that supports abortion rights.
When Democrats in the House passed the Women’s Health Protection Act in 2021, House Republicans claimed that bill would permit abortion “until birth for any reason.”
As we said, it would allow states to prohibit abortions after viability but not in cases where the life or health of the mother was endangered. Readers can form their own opinions about the legislation — once they have the facts.
The vast majority of abortions in the U.S. are performed early in pregnancy. Data from the Centers for Disease Control and Prevention show that 93.1% of abortions were performed at or before 13 weeks of gestation and less than 1% were performed at or after 21 weeks.
The Roe Ruling
In the 1973 ruling, the Supreme Court said that after fetal viability — the point at which a fetus was “potentially able to live outside the mother’s womb, albeit with artificial aid” — a state could “if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
The ruling said that viability occurred at 24 to 28 weeks of gestation, but a subsequent court ruling said viability is determined by the attending physician. A full-term pregnancy is typically 38 to 42 weeks, as measured from the first day of the last menstrual cycle.
In a companion case decided on the same day as Roe — Doe v. Bolton — the court held that “health” included both physical and mental health. “[M]edical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.”
The disagreement over what the health exception means began with those rulings, Ziegler told us. Anti-abortion activists responded by saying that any reason could be a mental health reason and “they became suspicious … of health exceptions” from that point on.
Republicans view the exception, particularly its inclusion of mental health, as “essentially a loophole,” she said.
Marie Griffith, a professor at Washington University in St. Louis and the director of the John C. Danforth Center on Religion and Politics, agreed, telling us that Republicans probably put the phrase “health exception” in scare quotes. They “see that as a loophole that would open the door to virtually anything,” and they “want to narrow it as much as possible,” said Griffith, the author of several books including “Moral Combat: How Sex Divided American Christians and Fractured American Politics.”
But the exception held — until the Supreme Court overturned Roe on June 24, 2022, by a 5-4 ruling, saying “the authority to regulate abortion is returned to the people and their elected representatives.”
The case, Dobbs v. Jackson Women’s Health Organization, concerned a ban on abortion in Mississippi after 15 weeks of gestation “except in medical emergency and in cases of severe fetal abnormality.”
Now, after Dobbs, 13 states have banned abortion at any gestational age, with some exceptions, according to the Guttmacher Institute’s tracking of state policies. Three other states have banned abortion at 15 weeks or less, 15 states have limits at 20 to 25 weeks, and another 13 states set the ban at viability — all with some exceptions.
Women’s Health Protection Act
Democrats introduced the Women’s Health Protection Act in 2021 and again in 2022, shortly after Roe was overturned. The legislation passed the House twice but failed in the Senate.
The legislation aims to establish a right to abortion. It says that health care providers can provide abortions and patients have a right to receive those services without various limitations, which it then lists.
Like Roe, it sets viability as the threshold for state restrictions. The bill says that abortion can’t be prohibited “at any point” prior to viability. After viability, it says abortions can’t be prohibited “when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”
So, like Roe, it would allow abortions to be prohibited after viability but with exceptions for risks to the life or health of the mother.
We asked Ziegler how this bill differed from the standard under Roe. She said the bill doesn’t codify Roe into law, for one. It is “more specific,” listing several restrictions that are prohibited. But “you could either see it as broader or narrower” than the court’s 1973 ruling, depending on one’s interpretation of Roe.
“It’s pretty capacious,” Ziegler said of the bill, but some state constitutional amendments on abortion are broader. “Could you conceive of a broader law? Absolutely.”
When Abortions Occur
As we said, CDC data show that nearly all abortions occur early in pregnancy, in the first trimester.
In 2020, there were 620,327 abortions in the U.S. in 47 states, the District of Columbia and New York City. The three states that didn’t report data were California, Maryland and New Hampshire. Gestational age information came from 40 states plus New York City, and that data showed “80.9% of abortions were performed at ≤9 weeks’ gestation, and nearly all (93.1%) were performed at ≤13 weeks’ gestation.” Less than 1% — 0.9% — were performed at 21 weeks or later. That was 4,382 abortions – but the figure is missing data from nine states plus Washington, D.C.
That low percentage for later abortions remained fairly constant from 2011 to 2020, ranging from 1.1% to 1.4% per year, according to data from 32 states plus New York City. (See table 11 in the CDC report.)
The CDC data doesn’t include any further breakdown for gestational age.
As for the phrase “up to the moment of birth,” Griffith saw that as a Republican tactic of “equating abortion with euthanasia.”
“They don’t always say that directly because they know that most Democrats see that as absurd,” she said. For those who believe life begins at conception, it’s not absurd. But for the general public, “talking about it right up to the moment of birth … most of us do see that as a baby at that point.”
A 2021-2022 survey of 5,930 abortion patients found that more than two-thirds would have preferred to have obtained an abortion sooner in their pregnancies. The research, conducted by the Guttmacher Institute, found that not knowing they were pregnant, cost, indecision, difficulty getting a health appointment and being unsure where to get an abortion were among the factors in delaying the procedures.
Some states do provide more information on gestational age of later abortions. Our fact-checking colleague at the Washington Post, Glenn Kessler, examined state data last fall when he wrote about this issue, finding that “most of those late-term abortions come within the 22nd or 23rd week, when viability outside the womb is not assured.”
For instance, Minnesota data for 2021 and 2020 show that five abortions occurred after 23 weeks of gestation in each year, with one in week 28 in 2021 and one in week 35 in 2020.
There isn’t comprehensive research on when or why abortions occurred late in pregnancy, but the reasons include the discovery of serious fetal defects. “There are a heartbreakingly large number of ways pregnancy can go wrong. There are things that happen later in pregnancy that can’t be known beforehand. This is not something that can be screened out,” Katrina Kimport, a professor and medical sociologist with Advancing New Standards in Reproductive Health at the University of California San Francisco, told us in an interview.
She cited one study from Israel of 57 cases where fetal abnormalities led to late abortions performed at or after 32 weeks at one medical center from 1998 to 2015. The researchers determined that about half of the fetal defects could have been detected earlier with testing and the other half could not have been.
For a 2022 paper published in Perspectives on Sexual and Reproductive Health, Kimport interviewed 28 patients who had an abortion in the third trimester, defined in the study as 24 weeks’ gestation or later. (Other sources, including the Department of Health and Human Services and the American College of Obstetricians and Gynecologists put the start of the third trimester later, at 28 or 29 weeks.)
The survey found two main reasons for the later abortions: new information, including the discovery of serious fetal abnormalities or even the fact that the woman was pregnant; and obstacles such as having the money, travel burdens and state policies.
She told us that it was reasonable to think that those reasons would apply to other patients — and could describe the pathways to abortion at any stage of pregnancy.
Abortions later in pregnancy are “highly uncommon,” Kimport said. The circumstances in which they do happen “are some of the most complicated, least predictable and for many emotionally traumatic … experiences that they’re in.”
Dr. Nisha Verma, a fellow with the American College of Obstetricians and Gynecologists, said in a prepared quote ACOG sent to FactCheck.org: “As a doctor who provides full-spectrum reproductive healthcare, including abortion care, I have cared for people who do receive terrible fetal diagnoses (for example, that their baby has not developed a brain and will not survive after birth) or life-threatening medical conditions and who need abortions in the third trimester. When I do have patients in these types of situations, my primary goal is to provide compassionate, evidence-based care that centers [on] the patient’s needs and minimizes suffering for her, her family, and her pregnancy. These situations are much rarer than other types of abortion care that I provide at earlier points in pregnancy.”
Verma said she also has had “patients diagnosed with life-threatening medical conditions during the third trimester that require delivery. In these situations, I counsel my patients about the options, and in many situations, based on my patient’s wishes, proceed with an induction of labor or c-section that aims to protect both the patient and the baby.”
We’ve written before about how situations in which labor is induced due to fetal abnormalities are abortions — even in cases of “catastrophic pregnancies” in which the parents and physicians “intend to deliver the baby,” but know that there’s a chance the baby won’t survive, Dr. Colleen McNicholas, another obstetrician and gynecologist speaking on behalf of ACOG, told us in 2019. “Even those heartbreaking stories are abortion stories,” she said. “From a medicine standpoint, it’s an abortion regardless of the indication.”
Kimport said that the barriers to abortion in many states after the Dobbs decision would likely result in more patients seeking later abortions because of delays in obtaining such care. “It follows that we would expect to see an increase in people who are presenting for care that much later in pregnancy,” she said.
In September, Graham introduced a bill that would prohibit abortions after 15 weeks, with exceptions for rape, incest and life of the mother — but not health. The text specifically barred exceptions for mental health reasons, saying an abortion at 15 weeks of gestation or greater could be performed when “in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions.”
In the CNN interview, Graham said that a fetus can feel pain at 15 weeks, calling an abortion at that stage of pregnancy “barbaric.” But as we’ve written before, it’s unproven whether a fetus can feel pain at 20 weeks.
His bill was referred to committee and no other action was taken.
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