Seven months ago, the influential anti-abortion advocacy group Americans United for Life released its annual report, Defending Life 2012, featuring an enthusiastic blurb from Governor Rick Perry, who called the report "ammunition in a fight that is far from over." In return, AUL was full of praise for Texas, saying its "aggressive legislative action" to restrict abortion had made it "one of the most protective states in the nation."
But AUL was pretty sure Texas could do even better. The organization came up with a number of recommendations to make an abortion even more difficult to obtain here. One of its most ambitious suggestions was a piece of model legislation euphemistically titled the Women's Health Defense Act (WHDA), which would ban all abortions after 20 weeks.
Now, one anti-abortion group, Texas Right to Life, is pushing to make that ban a reality. They're doing that by focusing on one of the most medically questionable pieces of AUL's model bill: a claim that abortions after 20 weeks should be made illegal because fetuses have the ability to feel pain.
"Fetal pain" is the newest frontier in the anti-abortion movement; similar bills have already been passed in Nebraska, Alabama, Idaho, Indiana, Kansas, Oklahoma, Georgia, Arizona and Louisiana. That's despite the fact that there's no conclusive evidence to suggest that fetuses actually feel pain . To make its case, Americans United for Life usually cites this study from 1987 while ignoring several more recent, less sketchy studies that debunk it. (You can find a few of those studies here, here and here.) The science suggests that fetuses feel pain at 29 to 35 weeks at the absolute earliest.
Nonetheless, Texas Right to Life recently announced that a "Pre-Born Pain Bill" would soon be filed in the state Legislature. In announcing the bill, TRL director Elizabeth Graham claimed that "the general medical consensus is that the developing human pre-born child is capable of experiencing torturous pain at 20 weeks post-fertilization."
Graham told the Texas Tribune that some unnamed lawmakers had already pledged their support for the bill. Which lawmaker is sponsoring the bill or when it will actually be filed is unclear.
Interestingly, even the state's other main anti-abortion group, Texas Alliance for Life, isn't so sure about this bill.
"We're trying to decide how to come down on it," Joe Pojman, TAL's founder and executive director, said today. "There's no question an unborn child of that age does feel pain. The question is if that legislation would withstand a constitutional challenge in federal court." There have already been a few court battles over fetal pain laws so far: Earlier this month, the ACLU sued on behalf of three Georgia doctors, seeking to have the fetal pain law in that state declared unconstitutional. The law was also challenged unsuccessfully in Idaho.
Pojman said his group's attorneys are still assessing the merits of the bill. In the meantime, they're focusing most of their attention on Planned Parenthood, trying to keep them from receiving any Medicaid reimbursements. As he told the Tribune, they'll also support a bill by Representative Dan Patrick that would require doctors to personally administer both of the drugs used in medication abortions. That would mean women would have to visit their doctors at least three times: once for the mandated pre-abortion counseling, 24 hours later for the first pill, and two days later for the second pill, which the FDA says women can safely take at home.
As with most abortion restrictions, that law would be the hardest on poor and rural women, who might have difficulty arranging transportation, childcare and time off work. And like the "fetal pain" provision, this bill has AUL's fingerprints all over it; it's patterned very closely after their model "Abortion-Inducing Drugs Safety Act" .
All of these bills can expect to receive a warm welcome, should they make it to Perry's desk; a spokesperson for the governor told the Austin-American Statesman that he would continue working "diligently to protect unborn life in Texas."
