Earlier this month, on October 3, the U.S. House of Representatives passed H.R. 36, the “Pain-Capable Unborn Child Protection Act.” Under H.R. 36, it is a crime for any person to perform an abortion if the probable post-fertilization age of the fetus is 20 weeks or more. This federal ban on virtually all abortions 20 weeks after fertilization marks a departure from the U.S. Supreme Court’s abortion-related jurisprudence and flies in the face of both international and comparative law standards.
In Roe v. Wade, the U.S. Supreme Court afforded women the constitutional right to abortion before fetal viability and prohibited post-viability restrictions on abortion when the pregnant woman’s life or health is at stake. Moreover, after viability, states cannot impose restrictions on abortion that constitute a “substantial obstacle in the path of a woman seeking an abortion”, according to Planned Parenthood of Southeastern Pennsylvania v. Casey.
H.R. 36 is unconstitutional on its face for numerous reasons, including the following:
First, the bill seeks to ban pre-viability abortions, which expressly violates a woman’s constitutional right to abortion under Roe. According to the American Congress of Obstetricians and Gynecologists, “[i]n no way shape or form is a 20-week fetus viable. There’s no evidence of a 20-week fetus surviving, even with intensive medical care”.
Second, H.R. 36 fails to include an exception for situations in which the pregnancy poses risks to the health of the pregnant woman, directly contradicting U.S. constitutional jurisprudence and violating women’s right to health under international law. From a comparative law perspective, moreover, abortion laws worldwide generally allow for exceptions to preserve the physical health of the pregnant woman. As of 2013, roughly two thirds of countries permitted abortion when the physical health of the pregnant woman is endangered. Abortion laws in countries like Germany, Great Britain, Israel, Spain, South Africa, and Turkey also contain provisions allowing for exceptions when the pregnant woman’s mental health is at risk.
Finally, although the bill allows exceptions for pregnancies that are the result of rape or incest, these exceptions are extremely narrow and are attached to strict, unnecessary requirements. Exceptions are only granted to minors who are survivors of rape or incest if those minors have reported the assault to the police or to a relevant government agency. H.R. 36 also imposes a mandatory requirement that adult survivors of rape obtain medical care or counseling from a state-licensed counselor or victims’ rights advocate for their assault at least two days prior to receiving abortion services. These medically unnecessary requirements are unconstitutional, as they constitute an “undue burden” under Casey.
In addition to being unconstitutional, H.R. 36 is extremely harmful to the women who seek abortions and the doctors who provide them. Such a ban would disproportionately affect access to legal abortion for marginalized women of color, poor women, etc. It would also impose harsh penalties (i.e. fines and up to five years in prison) on doctors who fail to comply with the ban and additional hurdles that interfere with the patient-provider relationship and further delay care.