Enacting a 20-week-ban on abortion in the United States

A ban on abortion after 20 weeks post-fertilization should be enacted, and such a ban should not include a rape or incest exception. Although it is perfectly understandable that women who become pregnant as a result of rape should not have to suffer through an unplanned pregnancy that was caused by an act beyond her control, rape and incest exceptions should not exist in laws that prohibit abortions because:

  • Abortion always kills an innocent human being
  • Rape-conceived pregnancies can usually be safely carried to term
  • Cases where rape-conceived pregnancies cannot be carried to term are already addressed through “life of the mother” exceptions and “health of the mother” exceptions to prohibitions on abortion
  • Women who do not want to take care of a rape-conceived children can give up their babies for adoption
  • Some women who become pregnant as a result of rape are actually unwilling to abort a rape-conceived pregnancy

In addition to the above reasons, most of the women who have been raped are aware that they have been raped, and these women can find out whether or not they became pregnant as a result of rape well before the 20th week of pregnancy through an ultrasound because a pregnancy will usually show up on an ultrasound by the 8th week of pregnancy.

The Pain-Capable Unborn Child Protection Act would prohibit most abortions after 20 weeks post-fertilization or after a gestational age of 22 weeks. Unborn children are possibly viable outside of the womb at the 20-week post-fertilization limit proposed under the Pain-Capable Unborn Child Protection Act. In fact, Amillia Taylor was born at a gestational age of 21 weeks and 6 days and did survive being born that early. If Amillia Taylor could survive outside of the womb a day earlier than the 20-week post-fertilization limit proposed under the Pain-Capable Unborn Child Protection Act, then other unborn children might be able to be saved if born at 20 weeks post-fertilization.

The United States Supreme Court had established the following trimester framework in the Roe v. Wade case:

  • During the first trimester of pregnancy, the abortion decision and the performance of the abortion must be left to the medical judgment of the pregnant woman’s attending physician.
  • From approximately the end of the first trimester of pregnancy, the state can regulate abortions in ways that are reasonably related to maternal health in order to further its interest in protecting its interest in the health of the mother.
  • For the stage of the pregnancy subsequent to viability, the state can regulate and even go as far as prohibiting abortion, except where “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother”, where “health of the mother” is defined as the “physical, emotional, psychological, [and] familial” well-being of the mother.

Since unborn children are possibly viable outside of the womb at the 20-week post-fertilization limit proposed under the Pain-Capable Unborn Child Protection Act, the first part of the Roe trimester framework does not apply to abortions that would be prohibited under this act and the second and third parts of the Roe trimester framework are clearly applicable to abortions that would be prohibited under this proposed act.

Roe v. Wade has enabled legal abortion-on-demand in the United States for any reason during all nine months of pregnancy up until the moment of birth through the imposition of a “health of the mother” exception requirement in the Roe v. Wade trimester framework and through the broad definition of “health of the mother” in the Doe v. Bolton case. However, at least four of the United States Supreme Court justices that were involved in the final decision of the Roe v. Wade and Doe v. Bolton cases, including two justices that supported the final decision in both of these cases, did not intend for there to be a right to abortion-on-demand during all nine months of pregnancy.

Although the Pain-Capable Unborn Child Protection Act does provide exceptions for the life of the mother and for “the substantial and irreversible physical impairment of a major bodily function, not including  psychological or emotional conditions, of the pregnant women,” this proposed legislation does not explicitly include an exception for the health of the mother and this proposed legislation is probably unenforceable due to the Roe v. Wade and Doe v. Bolton decisions, except in the case of partial-birth abortions through the intact dilation and extraction technique. This legislation will probably be challenged in the federal courts if it is enacted because this legislation does not include an explicit, broad “health of the mother” exception, and also because there would be strong opposition to this legislation by the abortion industry.

The United States Supreme Court is likely to hear a case involving a law that prohibits abortions after 20-weeks post-fertilization. The United States Supreme Court should uphold such a law, and the United States Supreme Court should also rule that states can even prohibit abortions that are deemed necessary for the preservation of the life or health of mother after viability for the following reasons:

  • The bans on abortion after 20 weeks post-fertilization being proposed by the United States Congress and by some states recognize a governmental interest of protecting unborn children against fetal pain.
  • Unborn children are possibly viable outside of the womb at 20 weeks post-fertilization.
  • Abortions can pose a serious danger to the “physical, emotional, psychological, [and] familial” well-being of the mother, even in cases where an abortion is deemed necessary for the preservation of the life or health of the mother.
  • Abortions performed for the purposes of preserving the life or health of the mother are sometimes ineffective in preserving the life or health of the mother.
  • The text of the United States Constitution does not distinguish between abortions that are necessary for the preservation of the life or health of the mother and abortions that are not necessary for the preservation of the life or health of the mother.
  • The imposition of a “health of the exception” requirement in the Roe v. Wade trimester framework implies the existence of a constitutionally guaranteed right to health-preserving medical care that is not essential to preventing the death of a patient, even though such a right does not exist within the text of the United States Constitution.
  • Except in the case of abortion, the United States Supreme Court has never declared a constitutionally guaranteed right to health-preserving medical care that is not essential to preventing the death of a patient.
  • The United States Supreme Court imposed the requirement for a “health of the mother” exception in the Roe v. Wade decision without citing any basis in the United States Constitution for such a requirement.
  • Even though the Roe v. Wade and Doe v. Bolton decisions had the effect of legalizing abortion on demand during all nine months of pregnancy for any reason, at least four of the United States Supreme Court justices involved in the Roe v. Wade and Doe v. Bolton decisions, including two that supported these decisions, did not intend for these cases to create a right to abortion-on-demand during all nine months of pregnancy.
  • The governmental interests that enable the government to prohibit abortions after viability in cases where abortions are not necessary for the preservation of the life or health of the mother still exist in cases where abortions are necessary for the preservation of the life or health of the mother.
  • The majority of Americans believe that abortion-on-demand should be illegal after viability.

Even if Roe v. Wade is not completely reversed, I predict that the following decisions will be made in future cases before the United States Supreme Court:

  • States will be allowed to regulate any abortion procedure performed after the moment of implantation.
  • After viability, states will be allowed to prohibit abortions that are deemed necessary for the preservation of the life or health of the mother in some circumstances.
  • States will eventually be allowed to prohibit abortions after viability in all circumstances, even when an abortion is deemed necessary for the preservation of the life or health of the mother.

Today is the 42nd Anniversary of Roe v. Wade and Doe v. Bolton

Today is the 42nd anniversary of the Roe v. Wade and Doe v. Bolton cases, both of which enabled abortion-on-demand to be legal in the United States during all nine months of pregnancy. Over 57 million unborn children have been killed as a result of legal abortion in the United States since abortion-on-demand was legalized nationwide during all nine months of pregnancy on January 22, 1973. The debate over whether abortion should become illegal in the United States is far from over, despite what the United States Supreme Court decided in Roe v. Wade and Doe v. Bolton 42 years ago.

The United States House of Representatives is currently proposing two major pieces of pro-life legislation. The first major piece, known as the Pain-Capable Unborn Child Protection Act, would prohibit most abortions after 20 weeks post-fertilization on the grounds that unborn children can feel fetal pain at that stage of pregnancy. The second major piece, the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2015, would prohibit federal funding of most abortion procedures, would prohibit federal funds from being used for abortion coverage under healthcare plans, and would require full disclosure of any abortion coverage under any healthcare plan provided pursuant to the Patient Protection and Affordable Care Act. Obama is likely to veto both of these pieces of legislation if these pieces of legislation pass in the U.S. House and the U.S. Senate. In addition, the Pain-Capable Unborn Child Protection act would probably be challenged in federal courts if it becomes law because of opposition to this piece of legislation by the abortion industry and also because this law might not meet the health exception requirement under the Roe v. Wade and Doe v. Bolton rulings.

The United States Supreme Court should uphold Texas HB 2, which was passed by the Texas Legislature in the second special session of the 83rd legislature and signed into law on July 18, 2013, because the intent of the law is to protect women who are undergoing abortions from the dangers of abortion procedures and also because the Texas Legislature did not intend to prohibit abortion providers from performing legal abortions at abortion clinics that meet the standards required under HB 2. In addition, the United States Supreme Court should also rule that prohibitions on late-term abortion and partial-birth abortion are constitutionally permissible in every circumstance, even when the an abortion has been determined to be necessary for the preservation of the life or health of the mother. Both of these actions would benefit American society, would lead to a reduction in the overall abortion rate, and would lead to decreased demand for abortion in the United States if the United States Supreme Court upholds HB 2 and rules that prohibitions on late-term abortion are constitutionally permissible in every circumstance.

In addition to prohibiting taxpayer-funded abortions and prohibiting late-term abortions, more needs to be done to help women who are in unplanned pregnancies to ensure that these women will not resort to abortion and to ensure that their children are taken care of after birth. Improving access to prenatal care for women who are in unplanned pregnancies through healthcare providers that will not pressure them into undergoing abortions will encourage these women to choose life, will reduce the demand for abortion, and will lead to more healthy babies being born. In addition, providing assistance to low-income women and improving access to adoption placement assistance for pregnant women who do not want to raise their unborn children after birth will reduce the demand for abortion.

Late-term abortion should be illegal without exception in the United States

Late-term abortion should be illegal without exception in the United States, even if a physician determines that an abortion is necessary for the preservation of the life or health of the mother, for the following reasons:

  • Late-term abortions are performed at a stage in which the unborn child is usually viable outside of the womb.
  • Late-term abortions are always performed with the intention of causing the death of an unborn child.
  • The vast majority of late-term abortions are performed for the purposes of getting rid of unborn children who are unwanted by their mothers.
  • Unborn children who are viable outside of the womb are able to feel pain and late-term abortion is very painful for the unborn child who is being aborted.
  • There is the risk that an unborn child will be born alive if a late-term abortion fails to kill the unborn child, and a child who survives a failed abortion can suffer irreversible harm as a result of the failed abortion.
  • Late-term abortions can seriously harm the health of the mother, and there have been cases where women have died from late-term abortions.
  • Most of the women who are considering an abortion are only willing to have an abortion if abortion is legal and readily available.
  • Most pregnant women are unwilling to end a planned pregnancy involving an wanted unborn child through an abortion simply because the life or health of the mother is in danger.
  • Pregnancies that are at or past the stage at which the unborn child is viable outside of the womb can be ended by means that ordinarily result in live birth, such as by Caesarean section delivery or induced childbirth.

In the final ruling of the Roe v. Wade case on January 22, 1973, the United States Supreme Court had ruled that “For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, 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.” In addition, the same United States Supreme Court Justices also legalized abortion-on-demand during all nine months of pregnancy by broadly defining the health of the mother as “physical, emotional, psychological, and familial” well-being of the mother in the Doe v. Bolton case, which was decided on the same day as Roe v. Wade.

Despite what the United States Supreme Court decided in Roe v. Wade and Doe v. Bolton, a prohibition on late-term abortion in cases where such an abortion is deemed necessary for the preservation of the life or health of the mother should be constitutionally permissible for the following reasons:

  • The governmental interests that enable the government to prohibit late-term abortions in cases where such abortions are not necessary for the preservation of the life or health of the mother continue to exist in cases where a late-term abortion is deemed necessary for the preservation of the life or health of the mother.
  • The text of the United States Constitution does not make any kind of distinction between abortions that are necessary for the preservation of the life or health of the mother and abortions that are not necessary for the preservation of the life or health of the mother.
  • The United States Supreme Court had already decided that a prohibition on abortion after viability is constitutionally permissible in cases where such an abortion is not necessary for the preservation of the life or health of the mother in the Roe v. Wade case.
  • In the Roe v. Wade case, the United States Supreme Court imposed the requirement of a “life or health of the mother exception” to bans on abortion after viability without citing any constitutional justification for such a requirement.
  • In the Gonzales v. Carhart case, which was decided on April 18, 2007, the United States Supreme Court ruled that the prohibition of partial-birth abortion by the intact dilation and extraction technique under the Partial-Birth Abortion Ban Act of 2003 is constitutional, even though this law does not include a health of the mother exception.
  • Various legitimate governmental interests justify prohibiting late-term abortions, even in circumstances where such late-term abortions are deemed necessary for the preservation of the life or health of the mother, including the following:
    • A legitimate interest in protecting the “potentiality of human life.”
    • A legitimate interest in protecting women against the harm to the health of the mother that might result from a late-term abortion.
    • A legitimate interest in preventing deaths of pregnant women that might result from late-term abortions.
    • A legitimate interest in preventing abortions that are medically unnecessary.
    • A legitimate interest in protecting pregnant women against serious errors in medical judgment that might lead to an abortion or might result in harm to the mother or her unborn child.
    • A legitimate interest in protecting unborn children against the irreversible harm that might result if they are born alive as a result of a failed abortion.
    • A legitimate interest in protecting unborn children against the pain that they might feel if they are killed by a late-term abortion.
    • A legitimate interest in deterring the commission of infanticide.
    • In the case of minors who become pregnant as a result of sexual abuse, a legitimate interest in preventing the cover-up of the sexual abuse.

The United States Supreme Court should uphold prohibitions on late-term abortion, even in cases where the prohibitions extend to late-term abortions that are deemed necessary for the preservation of the life or health of the mother. Upholding prohibitions on late-term abortion, even where the bans extend to cases where an abortion is deemed necessary for the preservation of the life or health of the mother, will have positive consequences for American society.