“It would ban abortion after 20 weeks, with no exception to protect a woman’s health and no exceptions for survivors of rape and incest.”
— Sen. Tina Smith (D-Minn.), in Twitter and Facebook posts about a bill banning abortion after 20 weeks, Jan. 29, 2018
“The blanket ban in this bill makes no exception for a woman’s health. A woman would need to be at risk of death or irreversible harm to receive care under this bill.”
— Sen. Dianne Feinstein (D-Calif.), in a statement, Jan. 29, 2018
“This bill would deny abortion care to a woman even if her health care provider determined that an abortion was her best medical option. It would also force a woman to wait until severe medical conditions became life threatening before she could obtain the abortion care she needed.”
— Vicki Saporta, president and chief executive of the National Abortion Federation, in a statement, Jan. 29, 2018
A range of elected officials and advocacy groups weighed in on a bill to ban abortion after 20 weeks. Abortion rights advocates were particularly critical of the exceptions — or lack thereof — for cases relating to a woman’s health, rape or incest.
Currently, 25 states ban abortion on a spectrum from 20 to 24 weeks of pregnancy, and Virginia bans third-trimester abortions, according to the Guttmacher Institute. But under federal law, the United States is one of only seven countries that allow elective abortions after 20 weeks, in large part because of a set of landmark decisions by the U.S. Supreme Court beginning with Roe v. Wade in 1973.
We previously looked at one angle in this debate: whether fetuses can survive at 20 weeks and the different ways to measure gestational age.
We now turn to a different question: Does the latest version of the bill include exceptions for a woman’s health and for cases of rape or incest?
The Pain-Capable Unborn Child Protection Act would impose a nationwide ban on abortion after 20 weeks of pregnancy. Doctors performing such abortions could be fined and imprisoned up to five years, unless one of the bill’s exceptions applied. Sponsored by Rep. Trent Franks (R-Ariz.) and Sen. Lindsey O. Graham (R-S.C.), the 20-week abortion ban has support from most Republicans and a handful of Democrats.
The abortion ban has been debated in Congress since 2013 without getting anywhere. What’s different now is that President Trump would sign it into law, unlike his predecessor. The bill passed the House in October 2017 but in January did not get 60 votes needed in the Senate for a final vote. Most Americans say abortion should be legal in all or most cases, according to the Pew Research Center, with 75 percent of Democrats and 60 percent of independents in favor, while most Republicans (65 percent) say it should be illegal in all or most cases.
The Supreme Court ruled in Roe v. Wade that abortions could be performed legally until the third trimester. Medical advances in the following decades made it possible for some fetuses to survive before the third trimester, and the court revised its framework in 1992, ruling in Planned Parenthood v. Casey that an abortion could be performed up to the point when the fetus becomes viable, which could be at 23 or 24 weeks, “or at some moment even slightly earlier in the pregnancy.”
The court added that laws banning abortion after the fetus becomes viable should include exceptions “for pregnancies which endanger the woman’s life or health.”
Smith, who was a top official at Planned Parenthood in the Minnesota, North Dakota and South Dakota region from 2003 to 2006, said in Facebook and Twitter posts that the Republican bill included no exceptions for a woman’s health or for cases of rape or incest. NARAL Pro Choice America says the bill includes “no exception to protect a woman’s health.”
Saporta, the president of the National Abortion Federation, says the ban would apply even if a woman’s “health care provider determined that an abortion was her best medical option.” The American College of Obstetricians and Gynecologists released a statement opposing the 20-week ban, noting, “There are many reasons a woman may seek abortion care at 20 weeks, including fatal or serious medical conditions to the woman and/or her fetus that cannot be diagnosed at earlier stages of pregnancy.”
Feinstein says something more limited, that “the blanket ban in this bill makes no exception for a woman’s health” and that a woman would have to be at risk of death or irreversible harm to get an abortion.
On the surface, some of these statements could give the impression that the Franks-Graham bill does not include any exceptions. In some cases, these statements suggest that a woman would have to carry a fetus to term even if her life was at risk. Smith goes the furthest by claiming the bill would ban abortions in cases of rape or incest.
The bill text does include a few exceptions. Abortions after 20 weeks would be allowed if a woman’s life is at risk, in cases of rape, and in cases of incest with a minor. So Smith is simply wrong to say rape and incest exceptions are not in the bill — and her campaign manager acknowledged this when contacted by The Fact Checker.
The first exception in the bill applies when “in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions.”
The second exception applies when a woman has been raped, provided she received counseling or medical treatment 48 hours before an abortion. A third exception in the bill applies to minors who are pregnant as a result of rape or incest, so long as a law enforcement agency or a government agency that handles child abuse complaints has been alerted.
“The bill includes specific exemptions when the life of the mother is in danger or in the cases of incest against a minor or rape,” said Kevin Bishop, a spokesman for Graham. “The text for the exemptions differed in the 113th Congress, but the exemptions were still in there.”
The Franks-Graham bill includes an exception for a woman’s life, but no similar exception for lesser health problems. It specifically excludes psychological and emotional conditions as the basis for abortions after 20 weeks.
In other words, the bill includes one of the exceptions required by the Supreme Court (life) but not the other one (health), critics and experts say.
“The Supreme Court made clear bans on abortion must contain an exception for a woman’s life and health separately,” said Ashley Schapitl, a spokeswoman for Feinstein.
“That language does not create an exception to preserve the health of a woman,” said Megan Christin, a spokeswoman for the American College of Obstetricians and Gynecologists. “Instead, it vaguely indicates doctors can only act once a woman’s life is actively in danger. In application, it leaves doctors with unclear standards, not rooted in evidence, that expose doctors to the threat of criminal and civil prosecution, limiting their options for care that is often needed in complex, urgent medical situations.”
She added that several conditions could become life-threatening for pregnant women before their lives are actually at risk, posing a conundrum for patients and doctors. Those conditions include “pulmonary hypertension, Marfan’s syndrome, severe valvular heart disease, Esienmenger’s syndrome, cyatonic heart defects, hormonally sensitive cancers, kidney disease, preterm premature rupture of membranes with sepsis, severe preeclampsia, HELLP syndrome, and ovarian hyperstimulation syndrome.”
Saporta, the National Abortion Federation president, said: “The bill clearly endangers the life and health of women by requiring that the woman be sick enough before a doctor treats her so he doesn’t go to jail. You end up having her condition get worse when a procedure could have been done earlier with less risk to the pregnant woman.”
She added that the Franks-Graham bill does not include exceptions for fetal anomalies, or in the alternative, a mental health exception. “A lot of the fetal anomaly cases are done under the mental health exception, and so those wouldn’t be covered in this situation,” she said. “So you have a woman who is carrying a fetus with anomalies incompatible with life. What sense does it make to force a pregnant woman to carry a fetus to term that has no chance of survival? You put a woman in a very difficult position.”
Smith’s campaign manager, Alana Petersen, said the senator was correct to say the bill does not include a health exception.
“The legislation contains an exception for cases where obtaining an abortion is necessary to save a woman’s life, but it does not take account of circumstances that pose serious risks to a woman’s health and well-being, including circumstances that could impact her ability to have children in the future,” Petersen said.
But she added: “The bill does include exceptions for survivors of sexual assault — such as rape and incest — but they are wholly inadequate. We should have been more precise by describing the bill that way. And we’ve updated the Facebook post to reflect that.” (The tweet remains uncorrected.)
The Pinocchio Test
Smith claimed that a Republican bill to ban abortion after 20 weeks of pregnancy did not have exceptions for cases of rape or incest, but her campaign manager acknowledged that the bill does provide for abortions in those cases. As is our practice, because Smith conceded this error, we will not be factoring it into our Pinocchio judgment; otherwise, she would have qualified for a few Pinocchios.
However, Smith’s tweet should be deleted with an explanatory note.
The Supreme Court requires that laws banning abortion include exceptions to protect a woman’s health and life. Opponents of the bill in Congress say it does not include a health exception, and that much is accurate; there is only a life exception. But some of the statements opposing the bill give the impression that there are no exceptions at all, health or life.
NARAL says the bill bans abortion after 20 weeks with “no exception to protect a woman’s health.” Smith also says there’s “no exception to protect a woman’s health.” The American College of Obstetricians and Gynecologists warned that “there are many reasons a woman may seek abortion care at 20 weeks, including fatal or serious medical conditions to the woman.” None of these statements makes reference to the exception for life-threatening cases.
Because some of these statements give an incomplete picture of the exceptions in the bill, we award One Pinocchio.
Send us facts to check by filling out this form
Keep tabs on Trump’s promises with our Trump Promise Tracker
Sign up for The Fact Checker weekly newsletter