A Federal Twenty-Week Abortion Ban Would Unconstitutionally Interfere with Women’s Health

For a PDF version of this factsheet with footnotes, please see below.

The House of Representatives will soon consider H.R. 1797, introduced by Representative Trent Franks (R-AZ), which would ban abortions at twenty weeks post-fertilization. This bill would take away a woman’s ability to make this very personal decision — a decision that is best left to a woman to make with her family, her doctor, and other trusted individuals. The bill is extremely dangerous because it threatens women’s health and lives, and ignores women’s individual — sometimes dire — circumstances. This ban is a direct attack on the constitutional right to abortion established in Roe v. Wade. The Federal Twenty-Week Abortion Ban would deny women across the country the right to make such an extremely personal medical decision and instead allow politicians to make that decision.

The Federal Twenty-Week Abortion Ban Ignores A Woman’s Individual Circumstances and Her Health

This blanket ban on abortion takes away a woman’s ability to consider her personal circumstances and decide what is best for her — even when her life is endangered. The bill includes two extremely narrow exceptions — which does not change the fact that this bill takes this decision out of women’s hands.  For example, the so-called rape exception includes a requirement that rapes must be reported to the authorities — which not only shows a distrust of women, but exhibits the bill sponsors’ complete lack of understanding about the reality of these situations. In fact, only 35 percent of women report sexual assaults. For the vast majority of women, this bill will still bar them from getting an abortion.

The so-called exception to protect a woman’s life is limited to physical illnesses only.  The bill’s cruelty becomes obvious by the fact that even a suicidal woman would not qualify for this one very narrow exception. Simply put, this blanket restriction ignores the circumstances a real woman may face when deciding whether or not to continue a pregnancy. 

The Federal Twenty-Week Abortion Ban Is Unconstitutional

The bill restricts almost all abortions at twenty weeks post-fertilization, in direct violation of Supreme Court precedence establishing that states cannot ban abortions prior to viability.¹ Just recently, the Ninth Circuit struck down a similar ban passed in Arizona, holding that “[a] woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable without undue interference by the state.”²

Moreover, the Supreme Court has also made it clear that, even after viability, an abortion ban must include an exception to protect a woman’s health.³ The Federal Ban’s lack of a health exception serves as an additional reason for why the Ban is unconstitutional.

The Federal Twenty-Week Abortion Ban Would Impose Severe Criminal Penalties on Physicians

Physicians who provide an abortion in violation of the ban would face up to five years of imprisonment or pay a heavy fine (or both). Notably, Rep. Franks’ Manager’s Amendment increased the penalty from two to five years, a particularly harsh fine when considering it penalizes a physician for just providing his or her patient the medical care the patient needs. Moreover, as it is difficult to know exactly how far along a woman is in her pregnancy, providers may refuse to provide abortion care weeks before even the banned twenty weeks for fear of prosecution. Women’s healthcare must not be compromise just because politicians think that they are better doctors than the doctors themselves.

1. See, e.g., Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846 (1992).
2. Isaacson v. Horne, No. 2:12-cv-01501-JAT, slip op. at 16 (9th Cir. May 21, 2013). 
3. Roe v. Wade, 410 U.S. 113, 164−65 (1973). 

Document(s):

Federal 20 Week Abortion Ban FS 6-14-13