Donald Trump ripped the veneer off the religious right’s well-crafted charade that its support for laws limiting access to abortion are out of concern for a woman’s health as well as its respect for the lives of the unborn.
When Trump said women having illegal abortions deserve punishment, every major of pro-life supporter condemned him, stating that women were never the target of anti-abortion laws. Their goal to stop abortions is out of concern for unborn children, and their target is and has always been providers, including doctors, nurses, and clinics. But not women, whom they attempt to cast as “victims.”
For the record, it is true that American women were never prosecuted or jailed for having an abortion, even in the days when it was illegal, before Roe v. Wade. Those facing prosecution in the past always were the abortion providers, unlike in Central and South America where women are prosecuted and jailed for illegal abortion. Indeed, nervous ER staff there have even reported suspicious looking miscarriages to legal authorities, and women have had to deal with the tragedy of losing a wanted child while fighting to prove they did not have an abortion.
In the U.S., we have never gone to that extreme. But we are getting very close to it. The religious right has failed to overturn Roe v. Wade either in the courts or in Congress, so they turned their efforts to limiting women’s access to the procedure through a series of state laws that have made every aspect of troubled pregnancies dangerous for women, even those who actually conceive a wanted pregnancy and later run into medical difficulties. In short, Donald Trump does not have to wait until he is president to punish women with troubled pregnancies. Many states are already punishing them. And the high court may someday strike down all these laws as unconstitutional. That, by the way, is part of why the right is fighting so hard to avoid seating a new justice. They recognize this.
The first such newly enacted and dangerous law is Indiana’s recently passed HB-1337. This is a veritable kitchen sink of every anti-abortion bill they tried and couldn’t pass before all rolled up into one monster bill. It prohibits abortion specifically to terminate a physically or mentally disabled fetus. Or for sex selection. North Dakota passed a similar law in 2013, under which nobody has ever been prosecuted for the simple reason that it is impossible to prove motivation. A woman seeking abortion does not have to disclose her reasons. Even in Indiana and North Dakota, Roe v. Wade is the law of the land and before 20 weeks, no woman has to give a reason for getting an abortion. But the new law complicates best medical practice, as Katherine McHugh, an Indiana obstetrician, points out in a beautifully written article in today’s Washington Post Outlook section.
Doctors, fearing they could lose their license, are now constrained from discussing fetal abnormalities and options freely with patients. Because it is now outlawed, they can no longer recommend terminating a pregnancy even when the fetus has little chance of surviving after delivery or would be condemned to a short and painful survival filled with months or years of agonizing, expensive, and ultimately hopeless medical treatment. The law deprives women of the best medical guidance in complex and tragic situations.
In addition, the Indiana law forbids discarding fetal tissue not only after an abortion but also after a miscarriage, even one as early as eight weeks. In theory, if a woman miscarries, she must save the blood and any tissue to take to a hospital and must arrange for cremation or burial at a funeral home. In order to make a point about the “personhood” of a fetus, Indiana has made the lives of young women facing medical complications in pregnancy unbearably harder.
Then there is Utah! The just passed SB 234, which requires that a doctor provide anesthesia to block pain when aborting any fetus 20 weeks old. As the bill reads, “to alleviate the organic pain to the unborn child.”
The problem with this, scientifically, is that it is unlikely a 20-week-old fetus would feel pain. The medical evidence is not there because fetuses “do not develop the proper neurological structures to feel pain until later, around 29 or 30 weeks, in the third trimester.”
A bigger problem is that there is no heavy anesthesia specifically for a fetus. In order to anesthetize one, doctors would have to sedate the mother heavily, something that carries major risks of surgical complications. No reputable doctor would willing give a patient unnecessary anesthesia, yet that is exactly what this bill requires. It puts a woman in nearly as much risk from a legal abortion as she would have seeking an illegal one.
Perhaps, though, the most egregious example of a heartbreaking consequence of overly aggressive abortion limits comes out of Texas (why does that not surprise me?).
Daniel Mahaffey originally posted it to Austin Reddit. He and his wife Taylor happily anticipated her pregnancy, looking forward to being parents until a serious complication developed. Taylor’s cervix began prematurely dilating. Doctors could do nothing to save the 20-week-old fetus. Inducing labor was the safest option, but according to HB2, Texas considers it a late term abortion because they know a 20-week-old fetus cannot live outside the womb. In other words, it was not viable. So, the Mahaffeys were sent home and had to wait until labor began naturally weeks later, which at that point created a considerable health risk for Taylor and anguish for the couple. After waiting weeks, crying themselves to sleep every night, Taylor finally delivered a stillborn baby.
Forcing a woman to carry to term a fetus that is dying or dead is a major health risk for her. As this article from Michigan points out, one religiously run hospital, Mercy Health Partners deliberately forced ER staff to prolong five women’s miscarriages until the risks to the women became severe. Because of the hospital’s religious guidelines, the ER staff waited until the women’s health was imperiled inducing labor to meet the guideline their religious rules. Religious factors forced them to wait for women to develop life-threatening sepsis and until the woman’s fever soared and other dangerous symptoms appeared before induced labor, the medical best practice to protect the woman even in cases where a fetus would have no possible chance of survival. Even in cases of a miscarriage not an abortion.
At this point, it is worth re-examining Roe v. Wade to see what that ruling actually did to protect women by making abortion legal.
According to Roe v. Wade, states cannot make laws prohibiting a woman from getting an abortion in the first trimester, from 1 to 12 weeks. In the second trimester, 13 to 27 week, states may pass laws to protect the woman’s health but cannot limit her right to terminate a pregnancy out of concern for the fetus, which is still not viable. In the third trimester, 28 weeks until birth, states may also enact laws to protect the fetus. That is when viability becomes a possibility. Viability, the ability of the fetus to survive outside the womb is a very important concept in understanding abortion law.
In Planned Parenthood of Southeastern Pennsylvania vs. Casey, in 1993, the Supreme Court rejected Roe’s trimester framework and linked the laws to viability in the third trimester. After 23 or 24 weeks, states could enact laws to protect the fetus.
The recent spate of state laws all depend on moving up the criteria of viability to 20 weeks, claiming that with modern medical techniques, a fetus could survive outside the womb at that earlier time. There is no medical evidence that is true. Furthermore, as the Texas law proves, nobody really believes it. The Mahaffeys were prevented from the medically safer induced labor precisely because the fetus could not survive outside the womb – was not viable – at 20 weeks. Texas considers a medical procedure to terminate a pregnancy at 20 weeks a late term abortion. That is an admission that the state knows a fetus is not viable, cannot survive outside the womb, at that time.
The Utah law insists on endangering women by requiring them to undergo heavy anesthesia to prevent pain to a fetus whose neurological system is not yet developed enough to feel pain until 24 weeks. All these laws create unnecessary risks and unspeakable horror for women who are unlucky enough to need an abortion, even one to protect their health and save their lives.
If that is not a war on pregnant women, I don’t know what is. Donald Trump merely told us the truth about the anti-abortion crowd. First, they are not pro-life. We should start naming what they really are: against reproductive health. Next, they are punishing women seeking abortion right now. They are even punishing women for difficult pregnancies and hard choices right now. They are punishing women and families right now. It is time we stopped that.