What You Should Know About Abortion After 20 Weeks

In 1973, Roe v. Wade established that access to abortion can be strictly regulated or restricted after a fetus becomes viable (able to survive outside the womb), which varies with each pregnancy but generally occurs between 24 and 27 weeks of gestation. But many in the pro-life movement have pushed hard to move that legal timeline up and divorce it from the viability test. Since 2010, legislatures in 18 states have passed bills which would ban abortion after 20 weeks, and the House of Representatives followed suit at the federal level the 113th, 114th, and 115th Congresses. Now the bill has been reintroduced once again in the 116th Congress. This fact sheet lays out what you should know about most abortion procedures that take place between 20 and 24 weeks of pregnancy.

Why would a woman have an abortion after 20 weeks?

• Most don’t—only 1.2% of abortion procedures occur after 20 weeks gestation—about 7,480 in 2016.¹
• It’s usually not something women delay by choice—the later the abortion, the more complicated the procedure and the more expensive it is.² In fact, 58% of women who have had an abortion say they would have liked to have had it performed earlier in their pregnancy.³
• So why are some abortion procedures occurring after week 20? Often, the reason is medical. About 2% of all pregnancies suffer from a major birth defect, and often, no medical treatment can save the fetus.⁴ And for many pregnant women, it is only in weeks 16-22 that they would even have a hint that something may be fatally wrong with their pregnancy.

When do pregnant women discover they are carrying a fetus with a fatal birth defect?

• Between 10 and 12 weeks, a pregnant woman can choose to undergo chorionic villus sampling, which can diagnose some chromosomal abnormalities and certain genetic disorders. However, it is an invasive test that may compromise the pregnancy and is typically used only for at-risk pregnancies.⁵
• Between 11 and 14 weeks, pregnant women undergo first trimester screening, which includes a blood test and an ultrasound measuring the thickness of the fetus’s neck. This screening can detect only whether the fetus is at a higher risk of chromosomal disorders or heart defects—it can’t actually diagnose them.⁶
• Sometime between week 15 and week 20, pregnant women undergo maternal serum screening, which is also called a triple or quad screen. Based on a blood test, this screening can detect if the fetus is at a higher risk of chromosomal disorders or neural tube defects. But these tests range in accuracy from 60-80% with a high number of false positives, so if they come back positive, doctors typically order additional follow-up tests before offering a diagnosis.⁷
• Between 16 and 22 weeks, a pregnant woman can opt to have an amniocentesis performed. This test can diagnose chromosomal abnormalities, neural tube defects, and some genetic disorders. However, an amniocentesis is an invasive and risky test (with a chance of causing miscarriage), so many women wait to receive results of earlier screenings before deciding to undergo one. For those women who are experiencing routine pregnancies initially, this is likely the first time they receive any sort of actual diagnosis of fetal anomalies that could be fatal.⁸
• Between 18 and 20 weeks, pregnant women undergo an ultrasound exam. This exam attempts to identify abnormalities in organs and bodily systems, which don’t show up in blood tests and are typically not sufficiently developed to be visible in an ultrasound any earlier in the pregnancy.⁹ And since doctors recommend that women avoid unnecessary ultrasounds due to possible risks, even if a possibly fatal malformation was visible before 20 weeks, the woman is unlikely to have had an ultrasound that could have spotted it before the 20 week deadline.¹⁰
• Even in cases where a fatal malformation of the fetus can be initially detected before 20 weeks, it can take weeks to get results from follow-up tests to confirm the diagnosis. And by the time that woman has found a specialist, considered the incredibly difficult decision to terminate her wanted pregnancy, and set an appointment with a doctor willing to perform the abortion (since very few perform these procedures), the 20 week mark has often passed.¹¹

But surely the federal and state bans have exceptions for these and other extenuating situations, right?

• No. The House bill makes no exception for fatal birth defects or the health of the pregnant woman. It also limits its rape and incest exception to situations where the victim has already come forward, and even under those very limited exceptions, it dictates that a doctor must use the method most likely to allow the fetus to survive.¹² And none of the 18 states which have enacted bans have included adequate health, rape, and incest exceptions.¹³

Is the ban constitutional?

• No. Fetuses aren’t viable at 20 weeks, so banning abortion after that arbitrary date is a direct challenge to Roe v. Wade and could only be upheld as constitutional if Roe were overturned. For this reason, similar bans have already been prevented from taking effect by courts in Arizona and Idaho.¹⁴

Where does the American public stand?

• Voters don’t support blanket bans on abortion after 20 weeks when they are asked about the actual circumstances which lead to such abortion procedures.
• When a doctor says the woman would suffer serious, long-lasting health problems if she carried the pregnancy to term, 66% of Americans believe it should be legal for her to have an abortion after 20 weeks.¹⁵
• When the fetus is not yet viable and the woman and her family determine that her health and personal circumstances are such that she should not continue her pregnancy, 61% of Americans believe it should be legal for her to have an abortion after 20 weeks.¹⁶
• When the pregnancy is the result of rape or incest, 61% of Americans believe it should be legal for the woman to have an abortion after 20 weeks.¹⁷
• When the fetus has severe abnormalities that would cause fetal death or extreme disability, 58% of Americans believe it should be legal for the woman to have an abortion after 20 weeks.¹⁸
• 59% of Americans say that the 20 week ban passed in the House of Representatives makes them feel that the Republicans are out of step with their own views and priorities.¹⁹
• 71% of Americans—including 62% of Republicans—say Congress shouldn’t be spending its time on 20 week abortion bans.²⁰

What‘s the best way to talk about this issue to those who are conflicted?

Roe v. Wade has been established law for 40 years, and it already strikes the right balance on restricting when abortion is available, giving a greater degree of protection to the potential for human life once the fetus is viable. Americans want to find common ground to reduce the need for abortion while protecting the right to have one, not to go back and overturn longstanding precedent or establish arbitrary bans, with no basis in science, that are devoid of health exceptions.