A National Law Codifying Roe?

There is very little Democrats in Washington will be able to do to save abortion rights, unless by some miracle they keep the House and increase their Senate majority in the midterms. Kate Riga at TPM argues that even if the Dems could pass a law that codifies Roe nationwide, the current SCOTUS might very well overturn it if challenged, and Republicans could revoke the law next time they control the White House and Congress.

This is all true, but if it comes to pass that such a bill becomes possible, Democrats should pass it anyway. And here is why.

One of the biggest reasons legal abortion is vulnerable is that hardly anyone actually understands what Roe allows and does not allow. In any discussion group about abortion, the pro-criminalizers will still argue that Roe allows women to abort for any reason at all points of gestation, which it does not. They tell each other lurid stories about healthy infants born alive and left to die or killed right before birth. Most of them have only a hazy idea about how pregnancy/gestation progresses and don’t understand, for example, that a fetus at 20 weeks’ gestation will not survive birth no matter what anyone does to save it. They also tend to be very naive about what can go wrong with fetal development and pregnancies that make therapeutic abortion the  humane, and sometimes the life-saving, alternative.

If we assume that most voters are not anti-abortion fanatics and are persuadable that a complete ban is a bad idea, the first thing that has to be done is simplify the issue. And the first thing to simplify: Nobody is pushing to make elective abortion legal throughout the entire 38-40 weeks of a full-term pregnancy. That absolutely has to be clarified.

One of my long-time gripes about NARAL and a lot of Democratic politicians is that they don’t try to educate the public about these issues. See, for example, How Democrats Need to Talk About Abortion and Why I Don’t Give Money to NARAL, both from 2019.

One of the things a national abortion law could do, if done right, is to clarify real-world abortion practices by setting up one nationwide standard insteads of a patchwork of state laws, many of which are under perpetual legal challenge. I am willing to bet that most voters don’t know what laws regulating abortions are on the books in their states unless their state’s abortion laws have been in the news recently.

And if Democrats want to stick to the text of the Women’s Health Protection Act passed last year, I would change one thing, which is to set a firmer gestational limit for elective abortion rather than rely on “the good-faith medical judgment of the treating health care provider” that a fetus is or isn’t viable.

Most Americans think abortion should be legal in at least some circumstances (although claims I keep hearing that 70 percent of Americans support Roe v. Wade don’t match the polls I see, which say it’s more like 55-60 percent), and I believe that if the “some circumstances” issue were clarified, a lot of the acrimony and ambivalence would go away. The opposition to legal abortion would be limited to the hard-core anti-abortion fanatics, which polls suggest are less than 20 percent of voters, possibly a lot less.

It’s understandable why many courts and medical people don’t want to draw a bright line regarding gestation, because there’s always a certain amount of guesswork involved, both in determining precise gestational age of a particular fetus and in determining which might have a long-shot chance at survival outside the womb and which don’t. But I think that setting a firm gestational limit for elective abortion somewhere would put an end to a lot of opposition. There already are such limits in some states, but most voters don’t realize that.

The medical literature has been pretty much in the same place on this issue for decades, saying that the lowest possible threshold of viability is somewhere between 22-24 weeks, but “Current recommendations suggest babies born at 24 weeks of gestation should normally receive active intervention while babies born at 23 weeks of gestation should be discussed with parents regarding whether such intervention is appropriate,” it says here. In other words, even if the very early infants survive, their quality of life could be highly compromised, and decisions probably need to be made on a case by case basis.

Some of the confusion about gestational limits comes about because sometimes the count begins at the last menstrual period, not when the pregnancy actually began, which would usually be about two weeks later. Everybody needs to get on the same page about when gestation begins.

As a practical matter, even in the U.S. 90 percent of elective abortions are performed by the 12th week of gestation, which is way, way before viability. According to this very good article by Kaiser Family Foundation, 1.2 percent of abortions in the U.S. occur after 21 weeks gestation, and many of those are performed because of  “medical concerns such as fetal anomalies or maternal life endangerment.” And it needs to be made clear that in these circumstances the law needs to butt out. Gestational limits are strictly for elective abortions.

According to KFF, the single biggest reason women delay getting an elective abortion that long is that they either needed time to scrape the money together or were hassling with insurance coverage. A few didn’t realize they were pregnant until they were pretty far along. Some had trouble understanding how to get an abortion or how to get transportation to a far-away clinic. Some delayed because their boyfriend/husband disagreed.

For a lot of reasons, the longer an abortion is delayed the more expensive and time-consuming it is, so it becomes more and more burdensome for poor women who have to delay the procedure to raise money.

Still, if the money barrier were taken away, that 1.2 percent would be even smaller. Several western European countries have a 12-week gestational limit for elective abortion, and this seems workable for them, but in every case women can get a first-trimester abortion in just about any medical facility, and that abortion is paid for by taxpayer-supported national health care. They don’t have to delay for financial reasons.

If there were, say, a national 23-week gestational limit for elective abortion, the criminalizers would fight to lower it. And then the discussion should include getting rid of the Hyde Amendment. We can reduce the gestational limit only if Medicaid pays for abortions. But having one national law, one standard, putting everyone on the same page, might make such negotiation possible.

And yes, there would be a few women who fall through the cracks and won’t realize they are pregnant until too late. “A few studies have estimated that one in 400 or 500 women are 20 weeks, or about 5 months, into their pregnancy before they realize they are pregnant. One in 2,500 women make it all the way to labor before they understand they’re going to have a baby,” it says here.

The criminalizers will never be happy if even one woman is allowed to abort for any reason. But I suspect the post-Roe period is going to open some eyes, and those ambivalent about abortion might realize that an absolute ban isn’t the way to go.

And of course, if Republicans control the House next year, there will be no such law. I’m just speculating, just in case.