Submitted by Katie Kennedy on Tue, 01/25/2022 - 8:50 am

A Condemnation of HB 1274: The Pain-Capable Unborn Child Protection Act

As a progressive resident of Virginia, I found the election results of 2021 deeply concerning. Worries about losing ground on environmental, racial, and reproductive justice, especially have occupied my mind, and it didn’t take long for my concerns to be proven valid. Our recently inaugurated representatives have hardly settled in, the 2022 General Assembly barely begun, and already a resolution has been proposed that would ban abortion after 20 weeks, only allowing for exception when “the mother faces a risk of death or serious damage to a major bodily function.”

While this resolution is concerning, it is not surprising. It is part of a recent trend where Republicans use “late-term abortion” as a galvanizing issue, going so far as to claim that Democrats support abortions “up to and after birth,” a falsehood which has led to increased attempts to ban abortion after 20 weeks (or in some states, even earlier). But expending this much time and energy to ban abortion after 20 weeks makes no sense, as 99% of abortions take place before 21 weeks.
Looking at data from 2019:

  • 92.7% of abortions were performed in the first 13 weeks
  • 6.2% of abortions were performed between 14 and 20 weeks
  • And fewer than 1% were performed at or later than 21 weeks

Republican calls for these bans are even more confusing and misplaced once we understand that many of the abortions occurring at or after 20 weeks are due to severe, often fatal, fetal anomalies not detected until later in the pregnancy. You can read some of the accounts of women who have found themselves seeking an abortion after 20 weeks for those very reasons hereherehere, and here. These women detail the absolute agony of being told the pregnancies they were invested in and intended to see through were not going to end with them bringing home the happy, healthy babies they had hoped for.

When faced with the knowledge that only 1% of abortions occur after 20 weeks, often for these heartbreaking reasons, these bans come across as empty lip service given at the expense of people who are already facing one of this world's greatest sorrows.

This is where the issue becomes increasingly personal for me. Last summer, my husband and I made the decision to add another child to our family, and we were ecstatic when we confirmed our pregnancy in October. But our excitement was quashed when the heartbeat we heard at our first sonogram was no longer beating at the next. We desperately want to try again, but after such a loss my mind cannot help but conjure the vast number of problems that might arise in a future pregnancy. Pair those possibilities with proposals like HB 1274, and you have the breeding ground for my greatest fear: learning of a serious fetal anomaly and being forced to see through a pregnancy where the child my husband and I already long for would not survive or would suffer a mental or physical impairment so grave that its quality of life would be utterly devastated.

My recent miscarriage was difficult enough, though it would have been much worse had I not had the support of a good doctor and the dignity of choosing for myself how to face it. I can only imagine the anguish of being denied the right to choose how to proceed after learning of a severe fetal anomaly or having to jump through hoops while dealing with restrictions that only prolonged my suffering or made the options unaffordable or inaccessible for me and my family.

Pregnancy is terrifying enough without adding this extra fear. And I must be honest: knowing the political climate is such that HB 1274 very well could become law has me questioning whether it is even wise to try again, no matter how much my husband and I long for another child.

If the goal were to affect meaningful change to the abortion rate, we know there are more effective ways to do so than by making it harder for grieving families to navigate these tragedies. Studies continually show that access to affordable birth control and comprehensive sexual education drastically reduce the rate of unwanted pregnancies, and these options, when examined "did not raise the risk of sexual activity among teens."

In fact, "
what a number of studies shows is that by providing comprehensive sexuality education, young people actually delay the onset of sexual activity" and "for kids who are sexually active, the research shows that they participate in much safer practices." This same link refers to a review by United Nations Educational Scientific and Cultural Organization, which "looked at 87 studies from around the world and found none of the programs led to earlier sexual activity in young people" (emphasis my own). Of eleven abstinence-only programs, only two led to "a delay in the initiation of sex."

Why do Republicans ignore what works and what doesn't? Policies that only hurt those who need to terminate wanted pregnancies does not help lower the rate of unwanted pregnancy. Attempts to ban the already rare abortions happening after 20 weeks misrepresent and outright ignore families that face a heartbreaking choice and villainize the medical professionals who assist them. It is unconscionable that politicians continue to weaponize these tragedies instead of creating policies that would help prevent unwanted pregnancies and ensure abortions can be attained earlier in pregnancy.

To that end, I wish to highlight the rising proportion of "early medical abortions" (abortions achieved via medication and not surgery, which can only be used up to the 11th week of pregnancy). In 2019, this method was used for 43.7% of all abortions (42.3% by the 9th week and 1.4% in weeks 10 and 11). That number represents almost half of all abortions for that year and is a 123% increase from 2010, all while the abortion rate itself continues to fall. As awareness about these medications grows and they become more affordable and accessible, that proportion will only continue to climb.

It is clear: When abortion services are affordable and accessible people do elect to use these services as early as they are able. Banning abortion after 20 weeks is unnecessary if we instead focus on ensuring the access and opportunity to so act. In fact, abortions performed after 20 weeks that are not related to fetal anomaly are largely caused when abortion seekers “experienced logistical delays (e.g., difficulty finding a provider and raising funds for the procedure and travel costs), which compounded other delays in receiving care.” When medical sociologists examined this information further, they found these women “had challenges finding a provider, getting necessary approvals from doctors in states that require them, or had financial constraints. All the women in the study traveled to other states to get the procedure done.” They tell us, “these are people who wanted an early abortion and tried to get one but were unable to do so because of the substantial obstacles that were placed in their path.”

The solution, then, is to address the obstacles contributing to these delays, thereby making it easier for these vulnerable populations to acquire abortions earlier in their pregnancies.

The points made here make it clear: Policies like HB 1274 are not necessary at best and are intentionally manipulative at worst. Those who support them only show themselves willing to further injure groups of people who are vulnerable or grieving, for little more than the acclaim of appearing to take a stand against abortion, all while ignoring actions that offer more significant results.

Those who promote these bans care more about appearing to be strong pro-life advocates than actually supporting their constituents, who will be harmed by such laws. To anyone versed in these matters, these proposals come across as mere tokenism to garner the support of those who are not informed about this topic, despite how easily information about it can be attained

Indeed, even the title of this resolution, The Pain-Capable Unborn Child Protection Act, serves only to elicit an emotional response, evoking concern over the alleged pain a fetus might feel when an abortion takes place, all while ignoring that “rigorous scientific studies have found that the connections necessary to transmit signals from peripheral sensory nerves to the brain, as well as the brain structures necessary to process those signals, do not develop until at least 24 weeks of gestation. Because it lacks these connections and structures, the fetus does not even have the physiological capacity to perceive pain until at least 24 weeks of gestation.

If protecting the “pain-capable unborn child” were truly the intention of this resolution, why would it be written to prohibit abortion a full four weeks before the capacity to feel pain is even possible? Could it be those writing such policies aren’t even concerned with whether they are informed, despite knowing their actions impact countless lives and have lasting effects? Or are they aware of the related facts and simply choose to ignore them?

Either way, it is our duty to condemn any such policies that are not grounded in fact and reason. Citizens of Virginia, please, write your representatives and urge them to oppose HB 1274.