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There's been a lot of analysis done over the push for fetal pain laws in the states.  But why do anti-abortion activists want that particular law to be the one to challenge Roe V. Wade?

Written by Robin Marty for - News, commentary and community for reproductive health and justice. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The anti-abortion activists and politicians in the states have made passing 20-week abortion bans based on the idea of "fetal pain" a cause-du-jour for this year's legislative sessions.  It's become obvious, as Kate Sheppard reported in Mother Jones, that "fetal pain" is their number one priority this year, with four new states enacting bans and a dozen others at least proposing the legislation.

Emily Bazelon writes in the New York Times that the Center for Reproductive Rights is considering their own eventual lawsuit over the bans, which are unconstitutional due to the Roe V. Wade ruling stating that abortion cannot be banned before a fetus is viable, usually at around 23 weeks.  These state-based bans are only carving off a small section of new abortions, and as Bazelon notes these bans are in many cases "symbolic."  Some of the states involved don't even have providers that perform second trimester abortions, and the number of women seeking them out are only a tiny percentage of the overall number of women wanting the procedure.

It's that statistic that is so dangerous, and why the push for legal action over the ban is exactly what anti-choice activists are both hoping for and counting on.

Just as anti-abortion activists won a victory in ending "partial-birth abortion," a made-up term that helped change the face of abortion challenges by placing a government duty to "protect" a fetus over the needs of a mother, even though very few abortions would ever be affected by the ban, "fetal pain" bans seek to do the same: allow the Supreme Court to place a new standard for which the rights of a fetus outweigh the rights of the woman carrying it.  

The anti-choice believe that because the amount of abortions that would be affected by the ban are so few, and the ruling would seem so minor, it may be easier for them to get a court win on this type of ban than any other type.  Mary Spaulding Balch, attorney for the National Right to Life committee, is literally begging for the court challenge, and other anti-choice groups believe that the Supreme Court would be more than willing to rule in favor of a ban that might "allow these challenges at the edges that wouldn’t formerly overturn the Roe decision."

This is what they are pushing for.  If they can get a court to rule that "fetal pain" is a new threshold for making abortion laws, they have even more "science" to start rolling back the restrictions.  According to, once they can get the court to rule that "fetal pain" is the point in which the fetus's existence outweighs the wishes of the woman carrying it, they will then begin to introduce more "evidence," this time claiming that fetuses can feel pain at 13 and 1/2 weeks, totally outlawing all abortions after the first trimester.  Or even some "research" claiming that the receptors are in place at 8 weeks, which could make an abortion impossible to access within a month of discovering a pregnancy, maybe even less.

How important is this approach of incremental restriction to set up a new precedent, opening the door then for much more inclusive bans?  Right to Life Ohio has actively campaigned against Ohio politicians trying to pass the "heartbeat ban" that would make abortion illegal after a heartbeat can be detected.  Their reason?  They know that such a large step would be quickly dismissed by the Supreme Court, and could hinder their efforts to get "fetal pain" recognized by the courts as a valid cutoff point for abortion access. 

Ohio also passed a fetal pain ban, this ban with the blessings of the state's Right to Life group.

The 20-week ban was never about trying to stop later term abortions.  It was always about setting a new precedent to overturn Roe V. Wade with a bill seen as too inoffensive to see as being the true threat to abortion access it really is.


Originally posted to RH Reality Check on Tue May 31, 2011 at 10:36 AM PDT.

Also republished by Abortion.

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