In 1973, the Supreme Court of the United States recognized a constitutional right to abortion in the landmark case of Roe v Wade. The Court held that states may regulate, but not ban, abortion after the first trimester, for the purpose of protecting the woman’s health. The Court further indicated that states’ interest in “potential life” could be the basis for abortion regulations only after the point of viability, at which point states may ban abortion except when necessary to preserve the life or health of the woman.1 In 1992, the Court decided Planned Parenthood v Casey and eliminated the trimester framework while upholding women’s right to abortion.2 As with Roe v Wade, the Casey decision held that there must be an exception for the woman’s health and life.
Fast forward to 2019
New York passed a law in 2019,3 and Virginia had a proposed law that was recently tabled by the House of Delegates,4 both related to abortions performed past the first trimester.
New York. The New York law supports legal abortion by a licensed practitioner within 24 weeks of pregnancy commencement. After 24 weeks’ gestation, if there is “an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health” then termination is permissible.3
Virginia. Previously, Virginia had abortion laws that required significant measures to approve a third-trimester abortion, including certification by 3 physicians that the procedure is necessary to “save mother’s life or [prevent] substantial and irremediable impairment of mental or physical health of the mother.”5 Violation included potential for jail time and a significant monetary fine.
The proposed bill, now tabled, was introduced by delegate Kathy Tran (House Bill 2491) and would have rolled back many requirements of the old law, including the 24-hour waiting period and mandate for second-trimester abortions to occur in a hospital.
The controversy centered on a provision concerning third-trimester abortions. Specifically, the proposed bill would only have required 1 doctor to deem the abortion necessary and would have removed the “substantially and irremediably” qualifier. Thus, abortions would be allowed in cases in which the woman’s mental or physical health was threatened, even in cases in which the potential damage may be reversible.5
The facts
Misconceptions about abortion care can be dangerous and work to further stigmatize our patients who may need an abortion or who have had an abortion in the past. The American College of Obstetricians and Gynecologists (ACOG) recently published a document discussing facts regarding abortion care later in pregnancy. The document (aptly named “Facts are Important”) enforces that policy be based on medical science and facts, and not simply driven by political beliefs.6
Fact. The majority of abortions occur prior to 21 weeks, before viability:
- 91.1% of abortions occur at or before 13 weeks’ gestation7
- only 1.3% of abortions occur at or after 21 weeks’ gestation7
- abortions occurring later in the second trimester or in the third trimester are very uncommon.
Fact. The language “late-term abortion” has no medical definition, is not used in a clinical setting or to describe the delivery of abortion care later in pregnancy in any medical institution.6
Fact. Many of the abortions occurring later in pregnancy are due to fetal anomalies incompatible with life. Anomalies can include lack of a major portion of the brain (anencephaly), bilateral renal agenesis, some skeletal dysplasias, and other chromosomal abnormalities. These are cases in which death is likely before or shortly after birth, with great potential for suffering of both the fetus and the family.
Fact. The need for abortion also may be due to serious complications that will likely cause significant morbidity or mortality to the woman. These complications, in turn, reduce the likelihood of survival of the fetus.