West Virginia is hardly the first state to pass a 20-week abortion ban through its legislature — 10 other states have similar laws on the books. But it's making news for something unusual about the people who approved it: the state's legislature is controlled by Democrats. For some, say the National Review, this fact proves that supporting bans on late-term abortions has become more politically acceptable for Democrats, even as the party seeks to claim the high ground on women's rights. For others, the bill represents an increasing threat to reproductive rights and women's health. In the broadest terms, both arguments are correct. But the details make things just a bit more complicated — just because a strategy to advance anti-abortion legislation is working doesn't mean that the legislation itself is moderate.
The conservative argument here, that these 20-week bans are becoming more politically appealing for moderate legislators (even Democrats)tends to claim that those who don't support these bans are now the "extremists" of the abortion debate. This is, in part, because of public opinion polls showing that majorities of Americans do favor restrictions on abortions past 20 weeks. Plus, the bans only pertain to a small number of abortions across the country — under 2 percent occur past 20 weeks. And there's also the test of time: after Wendy Davis filibustered a Texas omnibus anti-abortion law last summer, the state later passed and enacted a whole new set of restrictions on abortions, including a 20-week ban. And while some portions of that law face court challenges, the 20-week cutoff date itself has remained relatively safe. Davis even later stated that she'd support some version of a ban on abortion after 20 weeks.
There's just one problem with that line of thinking, however: the 20-week bans making their way into state law go further than simply changing the cut-off date for the procedure to a more popular timeline. They also advance a basis for determining the legality of abortion that relies on questionable research into the subject of "fetal pain." Like most of the proposed and passed 20-week bans, West Virginia's bill relies on controversial conclusions by a small subset of scientific researchers claiming that fetuses can feel pain by 20 weeks — a theory not currently supported by the majority of scientific work on the subject.
Currently, thanks to the Supreme Court's decisions on abortion rights, women seeking abortions have a constitutional right to the procedure until the "viability" of the fetus, which usually happens at around 24 weeks. If a "pain-capable" standard become the new basis for determining the legality of the procedure, the same questionable research cited for the 20-week ban supports the conclusion that fetuses can feel pain as early as 8 weeks into a pregnancy. The New Republic outlined some of the other problems with 20-week bans, despite their political appeal:
These laws may ban a tiny minority of abortions, but they tend to impact people in the direst situations. As the Times acknowledges, the most serious fetal defects usually don’t become apparent until around 20 weeks. (You can read a heartrendingstory on this over at Slate.) What's more, many women who get stuck having their abortions late in the game are poor (or underage, or in an abusive relationship, for that matter)...Abortions aren’t cheap—they often run over $400—and many women spend months hoarding dollars, asking friends and family, or searching for clinics or abortion funds that can help them make up the difference between what they have and what they need to pay.
The West Virginia bill is currently sitting on the desk of Democratic Gov. Earl Ray Tomblin, who has described himself as "pro-life." And it has the support of Sen. Joe Manchin, also a Democrat. Manchin, along with a handful of socially conservative Democrats in Congress, have faced criticism from anti-abortion groups for not supporting a national anti-abortion bill introduced by Sen. Lindsey Graham. West Virginia's bill could be the first sign that things are about to get a lot more difficult for reproductive rights advocates.
This article is from the archive of our partner The Wire.