Senate Republicans tried and failed on Monday to pass the “Pain-Capable Unborn Child Protection Act,” a law that would ban abortion at 20 weeks under the false premise that a fetus can feel pain by that point. The measure was unlikely to pass—Majority Leader Mitch McConnell (R-KY) never had the 60 votes to clear the filibuster threshold, even with the help of three Democratic senators who voted in favor of it.
But the fact that Republicans have set their sights on this particular type of abortion restriction is a key indicator of anti-choice lawmakers’ strategy: legislating to advance the government’s interest in “fetal life.”
Since Roe v. Wade, the courts have identified two avenues through which the government can pass legislation to stifle abortion rights. It can either do so to advance patient safety or to promote its interest in advancing fetal life. Before Whole Woman’s Health v. Hellerstedt, which in 2016 struck as unconstitutional two Texas anti-abortion provisions, lawmakers largely focused their attention on the “patient safety” path, enacting a panoply of restrictions targeting the business of providing abortions. These included requiring doctors performing abortions to have admitting privileges at a nearby hospital; requiring clinics to have transfer agreements with a local hospital; requiring clinics to meet the same architectural standards as stand-alone surgical centers, even if they did not provide surgical abortions; or requiring providers to adhere to outdated FDA protocol in administering medication abortions.
All in all, the list of restrictions passed in the name of advancing patient safety is long. And it was effective: Through these kinds of measures, for instance, lawmakers came very close to leaving Mississippi without any abortion clinic at all. They also decimated abortion access in the Rio Grande Valley of Texas.
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That was until Hellerstedt. For the first time in over 15 years, the U.S. Supreme Court took anti-choice lawmakers to task for their brazenness in attacking abortion rights.
In Hellerstedt, the Court struck down Texas’ admitting privileges requirement and its ambulatory surgical requirement because, the Court concluded, lawmakers didn’t have any evidence to support their claim that the regulations actually advanced patient safety. If lawmakers were going to restrict abortion rights in the name of protecting abortion patients, Hellerstedt made clear they would have to be able to provide clear evidence that their proposed restriction would meet that goal. Needless to say, that evidence did not exist in the Texas fight and it’s not likely to. Closing clinics and heaping administrative burdens onto providers and patients do not advance patient health and they never did.
Some of these restrictions are still in place, as advocates use the Hellerstedt precedent to get them struck as well. As the fight in Missouri illustrates, though, even that outcome isn’t a guarantee.
Still, we’ll see the immediate impact of the Hellerstedt decision unfold over the next couple of legislative sessions as lawmakers pivot to the other path: legislating to advance fetal life. Already, states like Mississippi, Missouri, and New Mexico are working up pre-viability bans of various sorts. These laws, like a 15-week abortion ban or a “heartbeat ban,” or dilation and evacuation bans, are direct attacks on Roe’s fundamental holding; that the state cannot ban abortion before viability. Like the 20-week bans scattered in 21 states across the country and the repeated attempts by Congress to pass a federal 20-week ban, they are all tests designed to see how far government power to legislate on behalf of a fetus can reach.
It’s reasonable to believe one of these new restrictions will land before the Supreme Court.
There are some early markers that suggest even conservative federal judges see viability as a firm stopping point to the extent of state power to legislate in the name of fetal rights. The Supreme Court, however, has historically given mixed signals here. It refused to take up a challenge to Arizona’s 20-week ban, leaving it blocked, but upheld a pre-viability ban in Gonzales v. Carhart,. But anti-choice lawmakers in both Congress and the states wouldn’t be pushing legislation like the 20-week ban and other direct attacks on pre-viability abortions if they didn’t believe they had the votes of five friendly Supreme Court justices either. So take those mixed signals with a proverbial grain of salt.
Which brings us back to Monday’s vote and the idea of “fetal pain.” McConnell almost certainly knew the bill would fail. But he held the vote anyway. He did so, as anti-choice leaders have stated, in order to put lawmakers on record, thus making them answerable to the anti-choice lobby as midterm elections approach. But he also clearly wanted to make a very public statement: that conservatives have finally dropped all pretense of being concerned for the health of pregnant people and instead will use the full power of the government to legislate on behalf of fetal rights.
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