Chances are good that, if Republicans seize control of the U.S. Senate on Election Day, they will try to push through a bill banning abortion after 20 weeks’ gestation nationwide.
Sen. Mitch McConnell (R-KY), who will likely become majority leader if he wins his re-election campaign next week and if Republicans win the Senate, has promised his base that the bill is a priority for him.
“We are taking very seriously the threat that Mitch McConnell has repeated, that he is eager to take on the 20-week ban,” Donna Crane, vice president for policy at NARAL Pro-Choice America, told Rewire.
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Crane said that the Republican-dominated House has passed the 20-week ban and could easily do it again, and that women could lose a crucial “firewall” against attacks on their rights if Democrats lose the Senate.
The president’s veto is of course the ultimate firewall, and President Obama is unlikely to allow such a ban to become law. Senate Democrats could also filibuster to keep the ban from getting that far, as long as fewer than 60 senators support it.
But Senate Republicans could easily monopolize lawmaking time and media attention with multiple attempts to pass it, and they could even try to insert it into must-pass spending bills that require only a simple majority.
“Thankfully the president has taken a strong position [against a 20-week ban], but I would not put it past McConnell to try to pass it repeatedly, to try to work it into legislation,” Crane said.
“If you look at the Republican record in the House, we can expect that Senate Republicans will try to throw poison pills of all kinds into appropriations bills,” a senior Democratic leadership aide told Rewire. “If they take this course, they’d be setting up the possibility of yet another Republican government shutdown.”
If the House this session is any indication, the Senate could try to pass numerous other anti-choice measures as well, from forced ultrasounds, to giving parents the option to block their teen’s abortion in court, to defining a fertilized egg as a person.
A 20-week ban might not seem extreme in comparison to bills like those. But it could overturn Roe v. Wade if passed, and cut off safe abortion care for vulnerable women.
The proposed federal 20-week ban has no exceptions for a woman’s health, only life endangerment, along with rape or incest.
No health exception means, for instance, that if a woman contracted breast cancer late in pregnancy and needed to start chemotherapy immediately, she could not get an abortion.
The ban also has no exceptions for fetal anomalies, even fatal ones, which are often not diagnosed until after 20 weeks.
Twenty-week abortion bans, which have become popular in some state legislatures, are considered a direct challenge to Roe v. Wade. Roe requires abortion to be legal until a fetus is viable outside the womb, and 20 weeks, the middle of the second trimester, is well before that point.
Courts have blocked three 20-week bans at the state level, though advocates fear the current Supreme Court might be swayed by disproven anti-choice claims about “fetal pain” and decide to gut Roe’s viability standard, which would threaten safe abortion access for women in desperate circumstances.
Twenty-week bans are “patently unconstitutional,” Crane said. But she doesn’t trust this Supreme Court to rule appropriately on that point, given its “growing trend of decisions that indicate that a number of justices are very eager to dismantle our reproductive rights.”
Asked about the 20-week ban, a McConnell aide told Rewire that the senator “has not been specific at this point on what the agenda might look like for next year.”