Often referred to as “20-week abortion bans,” these laws nominally seek to ban abortion after or around 20 weeks’ gestation, though bills in several states effectively ban abortion at 18 weeks. Legal experts believe these laws are unconstitutional on their face because they undermine a key provision of Roe v. Wade, which established the right to an abortion in the United States up until fetal viability, generally determined by doctors to be around 24 weeks’ gestation. Were the U.S. Supreme Court to uphold one of these bans, it would effectively dismantle the backbone of the court’s 1973 decision legalizing abortion in the United States. Anti-choice leaders have been open about their long-view strategy involving 20-week abortion bans—to persuade the high court to overturn the viability principle on which Roe rests.
According to the Centers for Disease Control and Prevention, in 2009 roughly 1.3 percent of all abortions performed in the United States were after 20 weeks’ gestation. There are many reasons women need abortions at this stage. A number of fetal and genetic anomalies cannot be identified until later in pregnancy, and some women find themselves facing pregnancies gone terribly wrong. Health conditions that threaten the woman’s life or health can develop at any point during a pregnancy. And a large share of women seeking abortions late in the second trimester do so because they face dramatically changed life circumstances or were unable to obtain an earlier abortion—a situation that’s increasingly common in states where laws are making abortion more expensive, more time-consuming, and more geographically inaccessible.
Examples of 20-Week Bans (last updated April 29, 2015)
Twenty-week abortion bans with varying exceptions have been enacted in 15 states: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Oklahoma, Texas, and West Virginia. Laws banning abortion at 20 weeks have been blocked in three states: Arizona, Georgia, and Idaho. As a result of litigation, therefore, a total of 12 such bans were in effect as of April 29, 2015.
Twenty-week bans come in different forms, with varying purported justifications. The most popular legislative model banning abortion at 20 weeks is the “Pain-Capable Unborn Child Protection Act,” based on model legislation authored by the National Right to Life Committee. Congress and several states have introduced legislation based on this model, which is premised on the medically disproven theory that fetuses at this stage are capable of feeling pain. The National Right to Life’s argument is based on a few selected studies, but the medical consensus is that a fetus’ nervous system is not developed until the third trimester.
Another legislative model banning abortion at 20 weeks is the “Women’s Health Defense Act,” authored by Americans United for Life (AUL) and adopted by the Arizona legislature in 2012. Knowing that the Supreme Court has historically held firm the notion that women have a right to an abortion before fetal viability, the lawyers at AUL came up with a model bill that argues foremost that this abortion procedure should be banned in the interest of protecting women’s health and lists undisputed risks of abortion in general, such as infection, cervical perforation, blood clots, and incomplete abortion. But the model law also claims that women who receive later abortions are at risk of “psychological or emotional complications,” such as depression and sleeping disorders—something that is not supported by much of the research on abortion and mental health outcomes.
In January 2014, the Supreme Court rejected the State of Arizona’s request to review a federal appeals court decision finding the state’s 20-week ban unconstitutional.
This summary was last updated April 29, 2015.