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Senate Blocks Unconstitutional 20-Week Abortion Ban

Emily Crockett

Opponents of HR 36 attacked the bill on the grounds that it is unconstitutional; violates the rights of women in desperate situations, including rape and incest victims; and threatens doctors with criminal penalties for trying to do what’s best for their patients.

See more of our coverage on the effects of the misleading Center for Medical Progress videos here.

Senate Democrats blocked a bill Tuesday that would have banned abortion nationwide after 20 weeks “post-fertilization,” or about 22 weeks’ gestation.

HR 36 passed the GOP-controlled House in May, but was not expected to get the 60 votes needed to break a filibuster in the Senate. The bill failed a vote to move ahead, 54 to 42.

Opponents of HR 36 attacked the bill on the grounds that it is unconstitutional; violates the rights of women in desperate situations, including rape and incest victims; and threatens doctors with criminal penalties for trying to do what’s best for their patients.

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Sen. Dianne Feinstein (D-CA) pointed out on the Senate floor that the bill is unconstitutional for two reasons: It bans abortion before a fetus is generally considered viable, and it does not include exceptions for a woman’s health—both of which contradict Roe v. Wade and other Supreme Court precedents.

“Only when a mother’s health deteriorates to the point that she could die does it allow an exception,” Feinstein said. “This is really shocking, because in no other circumstance would we restrict medical care until the patient is at risk of death.”

“Do we really want to make a criminal out of a physician who is trying to prevent a woman with preeclampsia from suffering damage to her kidneys or liver, or having a stroke or seizures?” said Sen. Susan Collins (R-ME). “Do we want the threat of prison for a doctor who knows that his pregnant patient needs chemotherapy or radiation treatments?”

Collins was one of just two Republicans, along with Sen. Mark Kirk (R-IL), who voted to block the bill. Three Democrats, Bob Casey (D-PA), Joe Donnelly (D-IN), and Joe Manchin (D-WV), voted to let the bill proceed.

“I saw the bill we’re voting on tomorrow and I felt sick to my stomach,” said Sen. Elizabeth Warren (D-MA) on the floor Monday.

Warren noted that the bill has no exceptions for fetal anomalies, which means that a woman would have to carry a doomed pregnancy for months after finding out at her 20-week ultrasound that her wanted child will die immediately after birth.

Under the GOP-backed bill, rape and incest victims would have to further delay abortion care by seeking counseling from doctors who do not perform abortions, or who do not even share an office with a doctor who does. Incest victims under the age of 18 would also have to file a police report.

“I cannot imagine that the U.S. Senate would pass a law to require a frightened 12-year-old girl to submit written proof that she had called the police to report a rape by her mother’s boyfriend before she could terminate that pregnancy,” Warren said.

An analysis by the Guttmacher Institute found that the burdens of a 20-week abortion ban would fall hardest on low-income women.

The same logic behind 20-week abortion bans has been used to threaten women into having unnecessary cesarean sections, according to the National Advocates for Pregnant Women.

A bill to defund Planned Parenthood was also filibustered in the Senate in August. Nonetheless, the Senate is expected to vote again on the issue Thursday, this time on a bill funding the federal government that also defunds Planned Parenthood.

Both votes appear to be inspired by discredited, deceptively edited videos released by an anti-choice front group, the Center for Medical Progress (CMP).

The CMP videos focus on fetal tissue research at Planned Parenthood, not the 1 percent of all abortions that are performed after 20 weeks. Yet many Republican lawmakers seem to be confusing the issue of funding Planned Parenthood with the issue of safe and legal later abortion.

Sens. Lindsey Graham (R-SC) and Tom Cotton (R-AK) both immediately pivoted to Planned Parenthood after making medically discredited claims that fetuses feel pain at 20 weeks.

Graham also appeared to confuse pregnancy with childbirth, alleging that Planned Parenthood is “harvesting organs from children late in the birthing process.”

Another point of confusion in the 20-week ban debate was the medically inaccurate language in the GOP-authored bill, which uses a method of dating pregnancies that is not accepted by the medical community. Republican lawmakers talked interchangeably about “20-week” fetuses (none of which have ever been known to survive) and fetuses of 22 weeks’ gestation, a very tiny minority (5 percent) of which can survive, often with complications.

“The challenge is that gestation is a gradual process, with no set moment at which a fetus would be viable upon delivery,” wrote Dr. Hal Lawrence, executive vice president of the American Congress of Obstetricians and Gynecologists (ACOG), in a piece for Time. “The sad reality is that even with the best medical care, early preterm birth remains dangerous.”

Senate Democrats slammed the GOP for wasting the few legislative days they have left before a government shutdown on October 1 on bills restricting abortion that are doomed to fail.

“Every senator in this body knows this bill is going nowhere. This attack is a waste of time. It will accomplish nothing,” said Sen. Harry Reid (D-NV) on the Senate floor.  

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