Guttmacher Policy Review 2020 | Vol. 23 Gestational Age Bans: Harmful at Any Stage of Pregnancy By Megan K. Donovan tates hostile to abortion ushered in an HIGHLIGHTS unprecedented wave of abortion bans in 2019, and legislatures across the South • Efforts to ban abortion by gestational age surged in 2019, helping to expose antiabortion lawmakers’ true agenda to eliminate and Midwest are expected to pursue S abortion rights entirely. more of the same in 2020. One of the biggest trends to emerge from the initial onslaught was • Using gestational age as a legal cutoff for abortion care is gestational age bans: laws that prohibit abortion harmful at any point in pregnancy. after a specific point in pregnancy. Gestational • States such as Oregon and Vermont are leading the way in age bans were enacted in nine states in 2019, enacting laws that prohibit government interference in abortion ranging from a total ban on abortion in Alabama care throughout pregnancy. to bans at 18 weeks in Arkansas and Utah.1 These laws are harmful to people seeking abortion care, and the lawmakers behind them are increas- Whatever the purported reason, bans based on ingly obvious in their intent to eliminate abortion gestational age have always represented little outright. Yet states like Oregon and Vermont offer more than an attempt to cut off access to abortion a counter-model to this cruelty, having recently wherever antiabortion lawmakers and activists enacted laws that prohibit government interfer- perceived an opportunity. Now, these lawmakers ence in abortion care throughout pregnancy. have largely abandoned the pretenses of years past, and the range of bans enacted in 2019 makes Gestational age bans are nothing more than a it abundantly clear that these policies are intended smokescreen. Gestational age bans have long as stepping stones on the path toward eliminating been a favored tactic of antiabortion activists abortion outright. In 2019:1 and politicians as they seek to undermine and ultimately overturn the constitutional right to • Alabama enacted a total ban on abortion, at any abortion. In the past, such efforts were usually point in pregnancy; cloaked in supposed justifications that obscured • Georgia, Kentucky, Louisiana, Mississippi and the end goal. For example, bans on abortion at or Ohio banned abortion when a fetal heartbeat around 22 weeks after the last menstrual period can be detected, which could be interpreted to (LMP) have been propped up with unscientific be as early as six weeks of pregnancy; claims about that stage of pregnancy, such as that • Missouri banned abortion at eight weeks; and a fetus can feel pain or that ending the pregnancy • Arkansas and Utah banned abortion at 18 weeks. will result in mental health complications.2 Antiabortion advocates also misleadingly refer Fortunately, courts have stepped in to block to these restrictions as “20-week bans,” reflecting these laws from going into effect while litigation their ideological preference for dating pregnancy proceeds. But these examples demonstrate two from the supposed date of conception instead of important things about lawmakers’ intentions and the standard medical practice of using LMP. tactics. First, they lay bare the underlying goal Guttmacher Policy Review | Vol. 23 | 2020 www.guttmacher.org 1 of eliminating abortion rights and services alto- received abortion care and others were turned gether. Second, they reveal the extent to which away and carried their pregnancy to term because antiabortion legislators are willing to essentially they were past the clinic’s gestational limit. The try anything, passing a range of bans and playing study revealed that women denied abortions politics with people’s health in a blatant effort to are more likely than those who receive abortion reach the newly conservative Supreme Court and care to experience loss of self-esteem, short-term present it with the opportunity to walk back earlier anxiety and ongoing exposure to intimate partner decisions. Missouri is perhaps the most telling violence. Of course, pregnancy and childbirth are example in this regard: Not content to simply ban inherently risky, and the UCSF researchers also abortion at eight weeks, the state legislature enact- confirmed that women who are turned away from ed additional bans at three other gestational ages abortion facilities are more likely to experience in anticipation of litigation. serious complications associated with the later stages of pregnancy, such as eclampsia and death, Banning abortion at any gestational age harms than women who receive abortion care. pregnant people and their families. Despite the many restrictions making it difficult to access, The UCSF study also demonstrated that women one in four women in the United States will have denied a wanted abortion are more likely than an abortion in her lifetime.3 People who decide their counterparts who received one to experience to have an abortion should be able to do so financial hardship and economic insecurity.6 For affordably, with dignity and on the timeline that example, six months after being denied a wanted meets their needs. Anything less is a fundamental abortion, women in the study had more than violation of reproductive freedom and autonomy. three times the odds of being unemployed and almost four times higher odds of having a house- Gestational age bans are a particularly blunt hold income below the federal poverty level than instrument in this regard, establishing a point in women who received abortion care. They were pregnancy after which the state replaces an indi- also more likely to be enrolled in public programs vidual’s reproductive decision making with its own such as Temporary Assistance for Needy Families agenda. Nor are gestational age bans the clear and the Special Supplemental Nutrition Program lines in the sand they at first appear. Pregnancy for Women, Infants, and Children and to report not dating is not exact and gestational age is an having enough money to cover basic needs. estimate: Only about 5% of births occur on the estimated due date.4 Thus, any firm legal line out- In particular, experiencing greater odds of having lawing abortion after a specific point in pregnancy a household income below the poverty level can create a chilling effect on abortion care for and being more likely to report not being able to anyone approaching that point because providers meet basic living expenses persisted for these must make judgment calls about gestational age women over a period of several years.7 In contrast, and legal liability. As a result, the autonomy and women who obtained an abortion were more health of those seeking an abortion can be com- likely to report positive one-year life plans one promised even earlier in pregnancy than called for week after the procedure—and to go on to achieve under a ban, a consequence that aligns well with them—than women who were turned away from a proponents’ antiabortion agenda. wanted abortion. In addition, when someone seeking an abortion is When someone is denied a wanted abortion, denied care, the consequences for her health and the consequences for her physical, mental and well-being and that of her family can be profound. economic well-being likely extend to additional The landmark Turnaway Study conducted by family members as well: Six in 10 abortion researchers at the University of California, patients are already parents.8 In addition to the San Francisco (UCSF) followed women for a litany of harms noted above, all of which could period of five years after they sought abortion care have obvious effects on a patient’s existing family, at a clinic.5 Some of the women they interviewed women denied abortion care in the UCSF study Guttmacher Policy Review | Vol. 23 | 2020 www.guttmacher.org 2 State abortion bans by gestational age At any point in pregnancy AL LA UT 6 weeks GA IA KY MS ND OH 8 weeks MO Ban not in effect due to ongoing or 12 weeks AR resolved litigation 15 weeks LA MS Ban in effect 18 weeks AR UT 20 weeks AZ MS NC 22 weeks AL AR GA ID IN IA KS KY LA NE ND OH OK SC SD TX WV WI 24 weeks FL MA NV PA Third trimester VA At viability (24–28 weeks) AZ CA CT DE HI ID IL ME MD MI MN MO MT NY NC RI TN UT WA WY No gestational age ban AK CO DC NH NJ NM OR VT Notes: Laws in effect as of 1/1/2020. All gestational age bans are listed using the medical standard for pregnancy dating, which is based on the patient’s last menstrual period. Source: Guttmacher Institute. experienced poorer maternal bonding with their State lawmakers have enacted previability abor- new children than women who were able to end tion bans despite and in defiance of these con- unwanted pregnancies and later had children from stitutional protections. Currently, 22 states have subsequent pregnancies.9 previability bans based on gestational age in effect, most of which are at or around 22 weeks In sum, there is abundant evidence that denying LMP (see figure).10 While the intention has always wanted abortion care causes real harm to been to challenge constitutional precedent, the pregnant people and their families, in addition recent wave of bans that extend even earlier in to fundamentally violating their reproductive pregnancy represents a brazen effort to tee up freedom and autonomy. Gestational age bans, at court cases that will present the U.S. Supreme any point in pregnancy, represent a knowing and Court with the opportunity to significantly roll back willful use of state power to compel childbearing abortion rights. Fortunately, all of the 2019 bans without regard for the consequences. Simply are currently blocked by courts, but their passage put, they are a blunt and devastating tool in the has nonetheless contributed to misinformation antiabortion toolbox.