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State abortion bans frighten the general public, anger abortion advocates, and encourage pro-life advocates. But what do they actually ban?
Media portrayals confuse people on all sides of the issue. For example, we hear a lot about time limits, such as 6, 15, 21, or 24 weeks, and viability, when a baby can live on life support outside the womb. We hear a lot about states that ban “access,” which sounds unjust. These are important issues, but not the main one.
Ending A Life, Deliberately
So, what exactly is being banned and why? Such laws ban deliberately ending the life of a human being in the womb because doing so is a type of killing. It does not matter that people disagree on whether aborting a 7-week-old embryo, for example, is killing an actual human being. What matters is that as soon as an embryo comes into existence, a pregnancy that is normally progressing will bring forth a child.
To terminate such a pregnancy, you have to end the life of whatever is developing in the womb, which already is — or will soon be — a human being. So, an abortion ban prohibits deliberately ending that life.
Serious reasons and difficult circumstances make the choice to abort seem worth it and necessary to many women who choose abortion. When you listen to women tell their abortion stories, you often hear them reflect on a difficult time during their teenage or young adult years. They might talk about loneliness, feeling in love and then feeling abandoned by the young man who got them pregnant, realizing they made a mistake, struggling to come to terms with abortion as the solution, and feeling embarrassment, frustration and anger at the legal obstacles making that solution difficult to carry out.
In these difficult circumstances, abortion seems like a relatively quiet, effective solution. And yet the quiet nagging truth is that abortion by design stops the development of a human being who would otherwise live among us. This is why people instinctively feel uncomfortable talking about it, why opposition to elective abortion will not simply go away, and why state abortion bans are one necessary aspect of justice for women post Dobbs.
The Total Abortion Ban
A “total abortion ban” sounds extreme. It sounds as if pregnant women suffering from medical complications might not receive treatment. In fact, the pro-choice site Abortion Finder, which is updated daily, shows that every state “enforcing a total ban on abortion” admits exceptions to prevent the mother from suffering death or severe bodily harm. In other words, when doctors perform procedures to address these kinds of medical complications, doctors are not guilty of killing the child, even when they foresee that a procedure will lead to its death. In these cases, there is nothing deliberate about ending the life of the child.
To capture this distinction, journalists have started to use the term “near-total abortion ban.” Such wording also sounds extreme, but it prohibits elective abortion and protects the child in the womb, the same protection children had before Roe superseded existing state abortion bans. In other words, when anyone — including doctors, nurses, and midwives — encounters a pregnancy that is progressing toward birth and then ends that pregnancy by ending the life of the child, the law recognizes that they have deliberately killed them.
Permissive Abortion Bans
According to Abortion Finder, most states’ abortion bans are not near-total but more or less permissive. They allow doctors, nurses, and midwives to deliberately end the life of the child up to a certain week of pregnancy. In the most permissive states, that point is birth, but if the abortion fails and the child is born alive anyway, they must care for the newborn. Less permissive states allow abortion up to between 21 and 24 weeks or to the point of viability. The rationale is that if a child could live outside the womb, it does not make sense to end their life deliberately. Other states permit elective abortion up to 15 weeks, when the child can feel pain. And in the least permissive states, the cutoff point is 6 weeks, when an ultrasound will show a heartbeat.
Near-total abortion bans sound extreme when judged in terms of time and access. In fact, these bans are based on the real issue: whether a human life is deliberately ended. Bans after 6 weeks or more simply allow doctors to deliberately end the child’s life up to that point. They are better than no restrictions, but they do not fully protect the fundamental human right to not be killed.
There are many complicated legal issues to work out, and more importantly, there are many resources that should be shifted from elective abortion programs to support women in the difficult circumstances that lead them to choose abortion. But state abortion bans are necessary in a society that protects rights not to be enslaved, discriminated against, and killed and whose prosperity provides opportunities for education, founding families, and meaningful work and leisure.
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