This summer, Judy Nicastro wrote in the New York Times that in her 20th week of pregnancy she learned that her son would have a hole in his diaphragm, only one formed lung, and would rely on oxygen for much of his early life. She confessed that she was grateful that he “died in a warm and loving place” when the doctor aborted him at 24 weeks.
Roughly one in three women will ever have an abortion, and just 1.5 percent of all terminations occur after 20 weeks. But certain types of fetal tests can only be performed at or just before 20 weeks, and that is the time when pregnant women find out about brain malformations, missing limbs, and other severe birth defects.
Tomorrow, Albuquerque could become the first city in the country to ban abortions after 20 weeks of pregnancy, using medical justifications about fetal pain that have successfully propelled similar bans through the legislatures of 12 states. Some see the measure as the start of a city-by-city battle by pro-life groups to ban abortions such as Nicastro’s, even in states with liberal legislatures.
The National Right to Life Committee, one of the main organizations pushing the 20-week bans, has said the group wants to prevent abortions after a point when a “member of the human family has reached a point where they are capable of feeling pain.”
However, this specific turning point—fetal pain at 20 weeks—has very little consensus among modern doctors: Dozens of studies have yielded pain estimates ranging from 16 to 30 weeks, and the American Congress of Obstetricians and Gynecologists has said it’s unlikely pain is felt before 29 weeks.
On the basis of this uncertain science rests one of the most comprehensive rollbacks of abortion rights in decades. It’s also a sign of the major gains the pro-life movement has made by emphasizing the agony that fetuses might feel, rather than what the movement sees as their God-given right to be born.
Today’s fetal pain legislation represents somewhat of a schism in the pro-life community.
In a number of court cases, beginning with Roe v. Wade in 1973, the Supreme Court ruled that states may not prohibit abortions necessary to preserve the life or health of the mother, regardless of the age of the fetus, with “health” encompassing both mental and physical health. And for no reason can states ban abortion before viability, the time, determined on a case-by-case basis, when the fetus can survive outside the womb. The medical consensus is that viability occurs at between 24 weeks and 26 weeks.
In the early 1980s, American Evangelical Christians began to coalesce around the idea that life begins at conception, but the pro-life movement’s early attempts at a constitutional amendment banning all abortion were unsuccessful.
Pro-lifers were then faced with a choice: Should they keep trying to outlaw all abortions, or simply push to make the procedure increasingly rare through piecemeal laws at the state level?
“Are you gonna go for these very broad kinds of restrictions on abortion at the federal level,” said Glen Halva-Neubauer, a political scientist at Furman University who specializes in the abortion debate. “Or were you going to attempt to take these sort of regulatory approaches?”
The more pragmatic set found early on that abstract arguments about the sanctity of life didn’t resonate as well with lay Evangelicals as did vivid descriptions of the abortion process. The 1984 video The Silent Scream, produced by the NRLC, purported to show a sonogram of a first-trimester abortion in which the fetus opened its mouth in what the narrator said was a wounded cry.
“The Silent Scream tried to elicit a sense of disgust at the prospect of the fetus being in pain during the procedure,” said Jonathan Dudley, a medical resident at Johns Hopkins who studied the anti-abortion movement at Yale Divinity School. “The idea that pain would give fetuses value is closer to a liberal worldview. They see it as more of a middle-ground position.”
From there, anti-abortion messaging focused heavily dismembered fetuses, the bloody abortion process, or the idea of fetuses being tortured to death.
“It's part of the idea that God has given us a sense of right and wrong,” Dudley said, “And that if something elicits disgust and contempt, it appeals to our inner moral compass.”
Some in the pro-life community have resisted simply trying to restrict when and how abortions can be performed, believing that such half-measures acknowledge that some abortions are legitimate.
In 2011, for example, a group of die-hard pro-life groups in Ohio pushed for a “heartbeat bill,” which would have banned abortions in the state after a fetal heartbeat is detected, which usually occurs at about six to eight weeks. But the state's main anti-abortion organization, Ohio Right to Life, refused to back it because they felt it was too radical—and therefore risky—for the political climate at the time.
Still, the effectiveness of this step-by-step strategy has become clear in recent years.
Last week, Republican Senator Lindsey Graham of South Carolina introduced the Pain Capable Unborn Child Protection Act, which would ban abortions after 20 weeks. Pro-life advocates also set their sights on state and, in the case of Albuquerque, municipal legislatures with laws that aim to elicit the same revulsion that laws banning so-called “partial-birth” abortion relied on. Rather than employ philosophical arguments about the true start of human life, anti-abortion groups are instead leaning on more visceral messages about pain and suffering.
“The life at conception issue gets to a spiritual question that's unknowable and unanswerable to a lot of people,” said Alesha Doan, chair of the women, gender, and sexuality studies department at the University of Kansas. But the fetal pain argument touches on the fact that, “we anesthetize for all surgeries, and it's considered cruel and unusual punishment not to do so.”