Conservative politicians and right-wing activists have targeted a Virginia state legislator this week and in the process reignited a nationwide debate about third-trimester abortions. Delegate Kathy Tran’s bill, which was tabled by a House of Delegates subcommittee this week, would have loosened some restrictions on second- and third-trimester abortions, which are legal in the state under specific circumstances. Though the legislation has been proposed in previous sessions—and though it never made it to the House floor for a vote this go-round—anti-abortion advocates are using it to paint pro-choice Democrats as supporters of, as Sen. Marco Rubio put it in a tweet, “legal infanticide.”
A woman can currently terminate a third-trimester pregnancy in Virginia if three physicians certify that the procedure is necessary to prevent her death or to stave off “substantial and irremediable” harm to her mental or physical health. Tran’s legislation would have made the procedure legal with only one physician’s approval and without the need to prove that the damaging health effects of a pregnancy were “substantial and irremediable.” (The physician would’ve still needed to confirm that the woman’s physical or mental health was at risk.)
In a video Tran released Thursday in response to criticism and mischaracterizations of the bill in right-wing media, she said her legislation would have removed “medically unnecessary and unduly burdensome barriers” to a health care procedure women should be able to obtain “in consultation with their doctors.” She expressed “surprise” that her bill was met with such hostility, given that it had been proposed in previous legislative sessions—and in the state Senate in the current session—and emphasized the point that third-trimester abortions are already legal in Virginia with a physician’s certification that the pregnancy presents dire health risks. “I’ve done nothing to change that,” Tran said. “What I have done is try to make sure that women are able to make these decisions and access these services in a timely manner.”
The rest of the country had gotten wind of Tran’s bill when the Virginia House Republican Caucus tweeted out a video of Tran answering questions from Republican Todd Gilbert, the chamber’s majority leader. In the clip, Gilbert presents Tran with a hypothetical scenario: A pregnant woman is in the process of giving birth—“She’s dilating,” Gilbert says—when she decides to “request an abortion” to preserve her mental health. “That would be a decision that the doctor—the physician and the woman would make at that point,” Tran responded.
Gilbert’s implication—that, if it were legal, women would routinely wait until they were physically in labor before making an impulsive decision to terminate an unwanted pregnancy—is a timeworn right-wing scare tactic. Abortions late in pregnancy are rare—in 2015, just 1.3 percent of abortions occurred at or after 21 weeks’ gestation, the same as it was in 1992. And in 1992, one study found that only about 2 percent of that 1 percent of abortions were performed at more than 26 weeks’ gestation. But pregnant women are not as capricious, nor doctors as slapdash, as anti-abortion advocates make them out to be. There are plenty of legitimate reasons that a woman might want or need an abortion later in her pregnancy. As doctor and public health researcher Daniel Grossman explained in a Twitter thread on Thursday, changes in the health of the fetus or pregnant woman, late-in-pregnancy test results revealing fetal abnormalities or nonviability, and legal restrictions—”Everything from medically unnecessary waiting periods and ultrasound laws to shuttering of clinics and insurance bans,” Grossman writes—can all contribute to a woman’s decision to get an abortion in her second or third trimester.
To understand the circumstances that precede a third-trimester abortion, forget the midlabor abomination Gilbert invented and consider the story of Kate Carson. At 35 weeks’ pregnancy, Carson learned that her fetus had multiple brain malformations that would leave her daughter unable to walk, talk, swallow, or even sleep. Or consider the story of Erika Christensen, who found out while 30 weeks pregnant that her baby would never be able to breathe, meaning the child would choke to death within minutes of his birth. Phoebe Day Danziger has framed her decision to terminate a fetus with critical urethra, kidney, and lung development issues as end-of-life care—a way to compassionately and peacefully prevent the suffering of a son she very much wanted. Tran’s bill—and, to some extent, the law that’s already on the books in Virginia—recognizes that no pregnant woman should be forced to endure childbirth to the detriment of her own health and possibly be forced to deliver a fetus doomed to a short lifetime of suffering, if it’s capable of surviving outside the womb at all.
Gilbert didn’t ask Tran why pregnant women might need timely access to late-in-pregnancy abortion care or why under urgent circumstances it may be too high a threshold to get three physicians to stake their careers on certifying that “substantial and irremediable” damage would occur without an abortion. That’s because he and his peers aren’t interested in confronting the real-life choices made by women and their doctors. Instead, they’re deploying a diversion tactic, trying to focus the public’s sympathies by conjuring an imaginary scenario.
Tran was right that, under her bill, a physician and a pregnant woman would be allowed to make the final decision about when and under what circumstances she could terminate her pregnancy. But even though there may be times when a pregnant woman’s life is prioritized over that of a fetus, doctors do not provide “abortions” to women in active labor. There is no such thing as a “born-alive“ abortion, a specter Republican National Committee Chairwoman Ronna McDaniel invoked in a tweet.
Virginia’s Democratic governor, Ralph Northam, a pediatric neurosurgeon who supported Tran’s bill, didn’t exactly clear up this point when he gave a radio host a confusing response to her request for clarity on Gilbert’s imaginary situation. Northam made it sound like a doctor would deliver a healthy infant, then discuss with its parents whether they should kill it. But his phrasing—he says third-trimester abortions are performed in cases of severe fetal abnormalities and nonviability, then says the hypothetical infant would be “kept comfortable” and “resuscitated” before the doctor and parents decide what to do—indicates that he was thinking about the procedure as a physician, not a politician. When an infant who might have otherwise been terminated in a third-trimester abortion is born, doctors and parents don’t then decide whether to kill the baby. They choose whether to take extreme, painful measures to try, against the odds, to keep a baby with severe congenital deformities alive.
Why is it so difficult for Democrats like Northam and this political consultant to make a confident, affirmative case for third-trimester abortion as essential health care and a woman’s right? One reason is that a fetus in the third trimester of pregnancy looks like a newborn baby. If a third-trimester fetus is healthy, there’s a good chance it could survive outside the womb—and Roe v. Wade, as it’s widely interpreted, only guarantees a woman’s right to abortion up until fetal viability (usually around the end of the second trimester) or in cases where her life and health are in danger. This eliminates the “constitutionally protected” argument that undergirds a lot of the rhetoric of abortion-rights groups.
There’s also the fact that the experiences of pregnancy, birth, and human development don’t lend themselves easily to the broad yet hyperspecific generalizations that pieces of legislation require. Every body—of a pregnant woman, of a fetus—is different, as is every set of life circumstances that might lead a woman to choose abortion as the best option for her and her family. Arguing for the right to third-trimester abortion means arguing that the exceptions should become the rule: Even though third-trimester abortions are extraordinarily rare, if restrictions on them are too strict, they could prevent women in unimaginably difficult and dangerous situations from getting the care they need. But it’s hard to convince the general public that loosening abortion restrictions to account for these few cases won’t then allow all manner of women to wait until they’re 30 weeks pregnant to request elective abortions. The reality is, there’s no reason why any woman would decide of her own free will to opt for a more dangerous, painful, and wildly expensive procedure over an earlier, easier one. But in a culture that believes women to be fundamentally irrational and untrustworthy—in issues of sexual harassment, assault, and discrimination as well as reproductive health—an If they can, they will argument is more convincing than the simple truth of They won’t.
In a series of tweets on the controversy, conservative New York Times columnist Ross Douthat pointed out that, for anti-abortion advocates, “if you’re trying to awaken consciences why wouldn’t you highlight the cruelest cases?” It’s in the anti-choice crowd’s interest to make exceedingly rare abortions involving a fetus that looks like a baby seem like not only the norm, but the inevitable outcome when women and doctors are empowered to make emotionally fraught and medically necessary decisions. The real cruelty is that it’s easier to generate sympathy for a fake scenario conjured by a Republican legislator than for real pregnant women who, faced with devastating decisions they never wanted to make, find they’re not trusted to make those decisions themselves.
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