20 weeks: Potential historic shift in US abortion law

APThe UK has the second highest abortion rate in Europe among 13 to 19-year-olds

On November 7, 2013, Republican Senator Lindsey Graham of South Carolina called for a vote on what has the potential to be a historic change in US abortion law. This at the same time when the US Supreme court is considering whether or not Texas's new abortion law can in fact be considered constitutional.

In both cases, one date is considered the new front line: 20 weeks. That is how old a foetus will have to be before aborting it becomes illegal (barring exceptional circumstances such as incest or danger to the mother's life). This is a huge shift, as it will be the first time since the Roe vs Wade case of 1973 that a new consideration regarding the foetus will be permitted into discussion - specifically, whether or not the foetus can feel pain.

The long-term frustration of the Christian community regarding the Roe vs Wade judgement was that it failed to consider the question of whether or not the foetus was alive from the point of conception. Instead, the Supreme Court argued that because there appeared to be disagreement between various groups on this point, "we [the Supreme Court Justices] need not resolve the difficult question of when life begins".

"When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer," they claimed.

Instead, they referred to the common law principle that "the unborn have never been recognised ... as persons in the whole sense" and that therefore Texas's ban on abortion except in cases where the mother's life was at risk was a violation of the right to privacy. In the end, the court chose that abortion could only be prohibited after the foetus was 'viable' meaning that it was able to survive being removed from its mother's womb.

Many have argued that this decision is by nature problematic and contradictory. On the one hand, the Supreme Court was arguing that it had no business defining medically speaking when life begins, and on the other they were choosing a medical definition of viability to determine when something has the legal protection of being alive.

The decision to base the deadline on viability is further complicated by advancements in medical science that have made infant mortality as a result of premature birth rarer and rarer, and have made it possible for babies to survive leaving the womb earlier and earlier. Under the Roe vs Wade judgement, doctors have substantial discretion over the definition of when a foetus is and is not viable, as well as freedom to define health risks the mother may face as a result of the birth, including potential psychological harm.

Other laws surrounding abortion have come into force since 1973, with some of the most recent being the 2003 ban on what are sometimes called "partial birth abortions" although the more medically accepted term is "intact dilation and extraction" (IDX). This is where the foetus is removed wholly intact past the navel, rather than more regular abortion methods which involve destroying or dismembering the foetus first. Many anti-abortionists argue that this practice was inhumane, and that because it is so often used in late term abortions, there is more potential for the foetus to be viable. In 2004 the Unborn Victims of Violence act made it possible to recognise a child killed while in the womb by anyone other than a mother or a doctor performing an abortion as a victim of a crime, and thus for a charge to be brought against the perpetrator in the foetus's name.

What makes the Pain Capable Unborn Child Protection Act currently being considered in the US so special is that it will be the first time since Roe vs Wade that the question of the stage of development the foetus has reached will be a serious question again, and it is an argument that has widespread medical support. Anna Higgins of the Family Research Council said: "There is ample medical evidence to support this bill's findings that unborn children are capable of experiencing pain by at least 20 weeks after fertilization … Anaesthesia is regularly administered to unborn children during prenatal surgery, which eliminates the stress response." From a scientific and moral point of view, the existence of pain is an important indicator. The neurological function of pain is akin to a computer's error message. It is telling us that something is wrong, and that something must be done to correct it. If pain exists therefore, it suggests there also exists a brain with enough of a sense of self to know when something is wrong. Therefore, destroying a foetus after twenty weeks is very definitely destroying a human with a sense of self.

Unfortunately, although it is definitely arguable that the foetus is alive at 20 weeks, this bill's chances of passing are far less certain. Despite an August Quinnipiac poll that found 55% of Americans opposed legal abortion after 20 weeks (including 60% of women, and 25% of women supportive of keeping current 24-week limits) and other earlier polls showing wider margins, President Barack Obama has already declared that he will veto the bill if it somehow makes it through the Democrat controlled senate. Senator Graham himself has said that the law would be short of 50 votes if it were to go to the Senate floor now, but he still wanted to push the issue before the mid-term elections. He is reported to believe that as the bill is more widely discussed and voters come to understand it better, support from the public will grow.

Many Americans are frustrated by Obama's obstructionist response, and particularly to his aloof lack of comment on the case of the "house of horrors" abortionist Kermit Gosnell. When the case of the man who had been conducting unregulated, sometimes non-consensual, illegal late term abortions for more than a decade first emerged, the President said that he was not in a position to comment since the trial was ongoing. However the trial concluded on May 15, 2013, and the President has still not commented. Lawmakers from the House of Representatives where the Pain Capable Unborn Child Protection Act began its journey have said that it was the horror of this man's crimes that inspired drafting the bill in the first place.

Although it is true that if it were passed, it would not stop the 88% of abortions that happen before and at the 12 week period (according to a Guttmacher study published in 2006), varying estimates from the Congressional Budget Office and the Guttmacher Institute say that the bill could save between 10,000 to 15,000 unborn children every year.

Many would argue that an incomplete step is better than none at all, and that President Obama is being unduly reactionary in describing the situation as one that would "unacceptably restrict women's health and reproductive rights", since the law is already in force in Alabama and Nebraska and is being voted on as a local ordinance in Albuquerque, New Mexico - a city that was home to two of the US's four late term abortion centres.

In neither of these places has the law gone to the Supreme Court or received substantial amounts of protest, feminist or otherwise. It appears that on this issue, the President and the pro-abortion movement in general are out of touch with both popular opinion and broader reality. The historic shift should come. The law needs to be changed. Anne Higgins was accurate when she said: "This is the human rights issue of our time."