Commentary Abortion

Who Is the ‘Pain-Capable Unborn Child Protection Act’ Protecting?

Concerned health-care providers, researchers & advocates

The abortion ban bill's very name is misinformation: At its foundation is the claim that a fetus can feel pain at this point in gestation. 

Just hours after Senate Republicans’ latest effort to gut the Affordable Care Act (ACA) died before a vote, House Majority Leader Kevin McCarthy (R-CA) announced a Tuesday vote on House Resolution 36 (HR 36), a bill criminalizing abortion care at the arbitrary 20-week cutoff point.

Research and epidemiological data don’t support the bill. And we would know: We are reproductive health researchers, certified nurse midwives, family and women’s health providers, nurse practitioners, physicians, mental health nurses, and public health advocates.

We also know the toll HR 36 will take. If this bill passes, there will be dramatic effects on individuals who need to access abortion care, especially people of color; the low-income; and those who learn that their pregnancies come with serious, even fatal, health problems for them or their fetuses.

But the “Pain-Capable Unborn Child Protection Act” shows Republicans’ dedication to this kind of abortion ban and also their increasing desperation for a win after devastating failures to repeal Obamacare and before the 2018 elections. Quite simply, they hope to score political points by robbing pregnant people of the ability to make the best medical decisions for themselves.

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And all for a bill that’s misleading at best and egregious at worst.

The bill’s very name is misinformation: At its foundation is the claim that a fetus can feel pain at this point in gestation. This is not supported by reliable evidence or respected medical research. A recent systematic review of more than 150 studies about fetal pain found that a fetus’ neurological system is too undeveloped to perceive pain at this random moment chosen by anti-abortion politicians who have pushed similar 20-week bans in many states and previously tried, unsuccessfully, to pass it in the U.S. Congress.

So why do the bill’s sponsors and supporters continue making this claim? Clearly, ideology trumps science here. But also, because they are politicians and not clinical experts, they choose to exploit extremely rare instances when severely premature infants have survived (often at great cost in terms of money and quality of life for them and their families). The authors of this bill incorrectly portray 20-week fetuses as viable, arguing that most could potentially live without significant disability or health complications. Health-care decisions should be based on reality and evidence-based research.

The bill’s sponsors and supporters say it will protect, not harm, families. But that could not be farther from the truth. In fact, HR 36 is antithetical to reproductive justice—a human rights framework developed by Black women and which says individuals have a right to choose when to give birth, terminate pregnancies, and parent—for several important reasons.

People in the United States already face many barriers to accessing safe, legal abortion care. Delays in pregnancy confirmation, insurance coverage bans on abortion care like the Hyde Amendment, and state-required waiting periods and parental-consent laws—along with finding money to cover child care, lost wages, travel, and lodging costs—make obtaining abortion care an increasingly more difficult task. Barriers can take weeks or months to overcome, creating more delays. People of color, those with lower education levels, and those who experience multiple life stressors in the preceding year are more vulnerable to these delays and therefore more likely to suffer the effects of HR 36.

Furthermore, pregnant people in rural and low-income communities are doubly constrained by challenges if they decide to—or are forced to by measures like HR 36—to continue their pregnancy. In addition to the few abortion care providers in this country, the shortage of pregnancy care is a well-documented problem, affecting more than half of the counties in the United States. It is unconscionable to force people to continue pregnancies in a country with one of the highest maternal mortality rates in the developed world, without ensuring the pregnant person has a safe passage.

HR 36 creates a system where some pregnant people won’t be able to access the abortion care they need and will be forced to carry their pregnancy to term. While the bill does include two exceptions (if the pregnant person’s life is in danger and in the case of rape), they are not enough.

These exceptions fail at protecting health of the pregnant person. At what point is death or injury considered “imminent enough” for an abortion to be allowed under this bill? How certain does a provider need to be without risking arrest?

State-level abortion bans with these limited exceptions like HR 36 disproportionately affect families receiving a fetal diagnosis via anatomy ultrasound (traditionally done between 18 and 22 weeks) or amniocentesis, which cannot be done before the second trimester and is the “gold standard” for chromosomal disorder diagnosis. Although often touted as “protecting” people with disabilities, these bans do nothing to address very real challenges an ableist society creates for these same people. Indeed, many of the bill’s sponsors, including Rep. Trent Franks (R-AZ), voted in favor of repealing the Affordable Care Act (ACA), which gave vital coverage to people with pre-existing conditions, including disabilities.

Finally, bans like HR 36 are unconstitutional. The U.S. Supreme Court made its stance clear in 2014 when it declined to hear Arizona’s appeal of a Ninth U.S. Circuit Court of Appeals decision that struck down a state ban similar to HR 36. Unfortunately, anti-choice politicians continue to ignore the U.S. Constitution.

If HR 36 becomes law, it signifies the same irresponsible disregard for improving and protecting access to health care that these same politicians have shown when pushing their multiple versions of Trumpcare. The brunt of these restricted choices will fall most heavily on marginalized women of color, the poor, and people struggling with difficult health news or conditions.

If the bill’s sponsors and supporters are really worried about what causes pain, they need to look no further than their own proposed bill.

This piece was co-authored by Dr. Ifeyinwa Asiodu (University of California at San Francisco); Dr. Sarp Aksel (Montefiore Medical Center, New York); Dr. Jessica Draughon Moret (Betty Irene Moore School of Nursing at University of California at Davis); Dr. Meghan Eagen-Torkko (University of Washington at Bothell); Yonah EtShalom, clinician and public health advocate (MSN, MPH, FNP); Dr. Monica R. McLemore (University of California at San Francisco); Dr. Ashish Premkumar  (Northwestern University); Jessica Roach (MPH and public health advocate); Dr. Mona Shattell (Rush University); and Stephanie Tillman (University of Illinois at Chicago, CNM, MSN).

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