Texas abortion bill redefines 20 weeks

Posted Thursday, Jul. 11, 2013  comments  Print Reprints

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norman Lt. Gov. David Dewhurst probably is right when he says the Senate will approve a package of strict new abortion restrictions today.

What’s more, Senate Republican leaders can be expected to push the measure through with no amendments, just as the House did this week.

But Senate Democrats also are right when they say the true test of House Bill 2 will come immediately after Gov. Rick Perry signs it. Expect abortion proponents to file federal lawsuits while the ink from his pen is drying, aiming to stop the new restrictions from going into effect.

In some ways, that won’t be new. Other states have passed similar measures and seen them stopped by federal judges.

But there are significant twists in the Texas bill that seem to tweak the national debate on abortion just enough to make it unique and not automatically subject to the same roadblocks thrown up in other states.

HB2 bans most abortions for women who have been pregnant for at least 20 weeks, restricts use of some abortion-inducing drugs and upgrades standards for abortion clinics to the point that all but a handful in the state would be forced to close.

There are avenues of legal attack for all of those provisions, but the abortion ban after 20 weeks has a unique Texas stamp. It involves facts about how women’s bodies work and is significant to the inevitable legal argument.

This provision takes on a monumental task. It’s meant to change a key part of the Supreme Court’s landmark Roe v. Wade abortion decision that has withstood repeated legal challenges since 1973.

The Roe standard is that states may not interfere with a woman’s decision to terminate her pregnancy before the fetus is viable — that is, capable of living outside the womb. Courts have said that no medical advances, either in care for premature babies or in the safety of abortions, have changed that standard.

HB2 seeks to recognize a state’s interest in protecting life after a fetus reacts to pain. There’s plenty of argument over when that pain reaction occurs and what it means, but HB2 supporters say it means state decisions can be given priority over mothers’ decisions after 20 weeks.

And HB2 takes a new path in measuring 20 weeks.

Other states’ laws and common medical practice measure pregnancy from the beginning of the woman’s last menstrual period. HB2 changes that to what a doctor determines to have been the actual date of fertilization “as calculated from the fusion of a human spermatozoon with a human ovum.”

What’s the difference? On average, women ovulate about two weeks after their menstrual period begins. That would be the earliest possible date of fertilization.

Twenty weeks later, a Texas baby actually would have undergone 20 weeks of development. Babies from other states that have tested this legal point would be an average of only 18 weeks from the date of fertilization. The Texas baby’s extra two weeks of gestation time makes a big difference.

Measured by the time since the mother’s last menstrual cycle began, the Texas baby would be 22 weeks old. That’s important.

On May 21, a three-judge federal panel for the 9th U.S. Circuit Court of Appeals tossed out an Arizona law that banned abortions 20 weeks after the beginning of the mother’s last menstrual period.

Both sides in that case agreed that “no fetus is viable at 20 weeks” by that measure, the court’s opinion said.

Viability comes at 23 to 24 weeks “or at some moment even slightly earlier in pregnancy,” the court said.

Remember that a 20-week Texas baby under HB2 is the same as a 22-week Arizona baby measured by that state’s law.

Can a legal argument be built that the Texas baby has reached viability? If so, that would satisfy the Supreme Court’s standard and the state could block an abortion.

I’ll bet the argument can be made, and will.

Mike Norman is editorial director of the Star-Telegram. 817-390-7830 Twitter: @mnorman9

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