‘Late Term Abortion’ Legislation

On September 13 2022, Sen. Lindsey Graham (R-South Carolina) announced a press conference regarding a proposed federal “late term abortions” ban, which was called the “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act”:

Graham linked to a YouTube video, “Graham Introduces Protecting Pain-Capable Unborn Children From Late-Term Abortions Act.” It started at around 12:12 pm on September 13 2022, and it began with Graham referencing legislation at the federal level to prevent abortions after 15 weeks.

Graham’s proposed legislation involved several subtopics.

An ‘Abortion Ban’ at the Federal Level

Emphasizing the “federal level,” Graham said in part:

” … we should have a law at the federal level … no abortion on demand, except in cases of incest, rape, or to save the life of the mother …”

Graham’s introduction of federal legislation restricting abortion led to the recirculation of a month-old clip from early August 2022. In it, Graham claimed that he had been “consistent,” and said that he believed that “states should decide the issue of marriage and states should decide the issue of abortion” — messaging in keeping with the Supreme Court’s Dobbs v. Jackson ruling, but not at all in line with his proposal to introduce limits on abortion at the federal level:

Graham’s extremely inconsistent statements about federal and state level laws were one aspect of discussion around this attempt. Others focused on Graham’s “late term abortion” description, in contrast with the 15 week time frame in question:

Fifteen Weeks Does Not a ‘Late Term Abortion’ Make

Does a 15-week ban constitute a “late-term” abortion ban? According to Sen. Lindsey Graham in January 2021 … perhaps not.

A January 2021 press release on Graham’s website indicated that the legislation was not the first (or second) time Graham has tried to interfere with abortion rights, although the 2022 version was five weeks stricter. It was titled “Graham Reintroduces 20-Week Abortion Ban,” and it began:

U.S. Senator Lindsey Graham (R-South Carolina) [on January 27 2021] reintroduced the Pain-Capable Unborn Child Protection Act.

The legislation would provide common-sense protections for unborn children at 20 weeks after fertilization, a point at which there is significant scientific evidence that abortion inflicts tremendous pain on the unborn.

Graham has introduced the Pain-Capable legislation the last four Congresses.

Defining a “late term abortion” was not straightforward, inasmuch as the phrase exists almost entirely in only two contexts — anti-abortion legislation, and medical professionals addressing bills, bans, and disinformation promulgated by anti-abortion activists.

A December 2019 Kaiser information sheet on “Abortions Later in Pregnancy” began with information about the influence of political squabbling on public health:

Abortions occurring at or after 21 weeks gestational age are rare. They are often difficult to obtain, as they are typically costly, time-intensive and only performed by a small subset of abortion providers. Yet these abortions receive a disproportionate amount of attention in the news, policy and the law, and discussions on this topic are often fraught with misinformation; for example, intense public discussions have been sparked after several policymakers have theorized about abortions occurring “moments before birth” or even “after birth.”

In reality, these scenarios do not occur, nor are they legal, in the U.S. Discussion of this topic is further obscured due to the terms sometimes used to describe abortions later in pregnancy– including “late-term,” “post-viability,” “partial birth,” “dismemberment” and “born-alive” abortions—despite many medical professionals criticizing and opposing their use. This fact sheet explains why individuals may seek abortions later in pregnancy, how often these procedures occur, how the concepts of viability and fetal pain play into this topic, and the various laws which regulate access to abortions later in pregnancy.

A February 2019 CNN question-and-answer piece about “late-term abortion” invited medical professionals to define the term in the following exchange:

CNN: What does the phrase “late-term abortion” mean to you?

Dr. Barbara Levy: The phrase “late-term abortion” is medically inaccurate and has no clinical meaning. In science and medicine, it’s essential to use language precisely. In pregnancy, to be “late term” means to be past 41 weeks gestation, or past a patient’s due date. Abortions do not occur in this time period, so the phrase is contradictory.

Dr. Jennifer Conti: In obstetrics, we don’t divide pregnancies into terms. “Late term” is an invention of anti-abortion extremists to confuse, mislead and increase stigma. The appropriate language is “abortions later in pregnancy.”

CNN: When people speak about abortion later in pregnancy, are they referring to abortion in the third trimester or something else?

Levy: Generally, abortion later in pregnancy refers to abortion that happens at 21 weeks or later, so in the second or third trimester.

According to a September 2021 GoodRx explainer, “late term” is, in fact, a medical term “used to describe the very end of a pregnancy, after it has reached ‘full term,’ from week 41 onward,” and abortions “can’t and don’t happen in these late stages of pregnancy.” A February 2019 New York Times article, also in question-and-answer format, noted:

What is late-term abortion and what does federal law allow?

Roe v. Wade, the 1973 Supreme Court decision legalizing abortion, said that abortion should be allowed until the time a fetus could survive outside the womb, a point (known as viability) that medical science generally considers to be at about 24 weeks of pregnancy. The Court has also specified that abortion should be legal after viability in certain cases — if continuing the pregnancy would seriously threaten the woman’s life or health.

The same piece addressed political claims about fetal pain, explaining that consensus held that “fetuses do not develop the neurological wiring that would give them the ability to feel pain until at least 24 weeks — in other words after nearly all abortions occur.”

Does the United States Have Unusually Permissive Abortion Laws Compared to European Nations?

Graham’s 2021 press release included claims that abortion laws in most European countries were far stricter than those in the United States, and further compared American abortion laws to abortion laws in China and North Korea:

“I am proud to once again introduce the Pain-Capable Unborn Child Protection Act,” Graham said. “There are only seven countries that allow wholesale abortions at the 20-week period, including China and North Korea. The United States should not be in that club.”

“I don’t believe abortion, five months into pregnancy, makes us a better nation,” said Graham. “America is at her best when she’s standing up for the least among us, and the sooner we pass this legislation into law, the better. We are on the right side of history.”

In his September 2022 press conference, Graham echoed those assertions about the legality of abortion in European nations. On September 12 2022, political scientist Don Moynihan tweeted that Senate Republicans claims about Europe were “deeply misleading”:

Moynihan all tweeted a link to a piece he published on Substack on July 12 2022 (“Debunking the false comparisons between European and American abortion policies”) addressing a developing narrative in bad-faith claims that European abortion laws are broadly “stricter” than those in the United States.

Moynihan provided a granular assessment of the claim, and summarized:

This claim also featured in the majority Dobbs opinion, and it’s likely to be a recurring talking point in the fall election and perhaps for years to come, so it’s worth taking seriously.

The point seems to be a) that US abortion laws were wildly permissive pre-Dobbs, and b) that a reasonable compromise on abortion can be found if liberals would just use the same standard as in their beloved Europe.

Is this right? It certainly feels surprising.

In short, it is mostly incorrect if you take a comprehensive view of abortion access. The argument strategically focuses on one aspect of abortion access — gestational cut-off limits — where America was generally more liberal than Europe, and ignores other criteria to paint a misleading picture. People might disagree on how much to weigh these other criteria, and Europe is not a single country, so there will be some exceptions (for example, Germany is more restrictive than most of its neighbors). But at the very least, we should avoid avoid the mistaken view that there is a single, valid measure of abortion access that can be used across countries.

A comprehensive view shows that abortion is generally mostly more accessible in Europe on most criteria than in the US. It was pre-Dobbs, and it is going to be dramatically more so post-Dobbs.

Not long after Moynihan published his analysis of the talking point involving abortion laws in Europe, The Atlantic addressed the increasingly popular claim — echoing the assessment that such claims are nothing more than a false comparison:

The first big problem with this argument is that it is false. Although many European countries have gestational limits that on paper resemble those in the Mississippi statute, and some have mandatory counseling and waiting periods, the exceptions that come into effect after that initial limit mean that women in Europe can still get abortions later than the limit if they wish to. That means the difference between European gestational limits and the Roe and Casey framework was less than it appeared to be. Moreover, the bureaucratic obstacles to getting an abortion in the first trimester in many states pre-Dobbs [June 2022] were far greater than in most of Europe as a result of anti-abortion legislation designed to circumvent Roe.

The second big problem is that many of the post-Roe laws going into effect are outright bans with very few exceptions and with earlier time limits—much stricter than either the law in Dobbs or the European laws at issue. This misrepresentation relies on a superficial discrepancy—that the Roe framework appears more permissive than most European laws as long as one focuses just on gestational limits and ignores the many exceptions in those laws and the state of health-care access on the continent.

The Atlantic added that overall, abortion hurdles like those in many American states are simply not a factor in Europe:

Then there’s the fact that many countries in Europe have more generous welfare states in which abortion care—in addition to medical care and child care—is either subsidized or paid for and typically easy to access. By contrast, Mississippi has extremely high maternal and infant mortality rates, part of the state government’s general indifference to the well-being of its residents and whether they have access to health care.

Graham’s Proposed Legislation

After the press conference concluded, Graham tweeted a link to the proposed legislation:

Summary

On September 13 2022, Sen. Lindsey Graham (R-South Carolina) again announced an effort to introduce a federal “ban” on “late term abortion,” at 15 weeks (versus the 20 week limit he used in his January 2021) proposal; in July 2022, Graham claimed that he believed abortion should be “left up to the states.” Graham’s claims about abortion access in Europe were deeply misleading. “Late-term abortion” is, according to multiple medical professionals, political terminology.