S. 3275 Is Unconstitutional
S. 3275 is in direct violation of the U.S. Constitution: it bans almost all abortions at an arbitrary cutoff date of twenty weeks and it does not contain an exception for when an abortion is necessary to protect the pregnant individual’s health.
Each time a similar ban on abortion has been challenged in court, it has been blocked.
S. 3275 Deprives Individuals of the Ability to Make A Personal Medical Decision
S. 3275 would prevent individuals across the country from receiving an abortion after an arbitrary cutoff date, ignoring the many reasons why someone may need an abortion later in pregnancy.
It is not always possible for someone to get an abortion as soon as they would like. Some need time to gather funds to cover the cost and travel. Others are delayed in finding out they are pregnant or may develop or discover problems with the pregnancy as it progresses. And politicians put more barriers in the way, like restrictions that cause clinics to close or withholding insurance coverage of abortion.
These barriers are compounded for certain groups that already face barriers to accessing care, like people
of color, those working in low-wage jobs, and those struggling to make ends meet. S. 3275’s arbitrary cutoff can leave many of these individuals unable to access the care they need. Everyone’s situation is diff erent. Politicians should not deny an individual the ability to make a legal decision in consultation with those they trust the most.
S. 3275 Would Send Health Care Providers to Jail and Interfere with the Patient-Provider Relationship
S. 3275 would criminalize health providers, threatening them with a prison sentence of up to five years for providing the care that their patients need.
S. 3275 interferes with the patient-provider relationship. It requires providers to use an “informed consent” form that goes against established medical practice and includes additional provisions that force them to provide care contrary to the practice of medicine.
The American Congress of Obstetricians and Gynecologists (ACOG) has come out in strong opposition to previous versions of this bill, citing the serious threat this bill poses to women’s health and because it is not based on sound science.
S. 3275’s Life Exception Is Overly Narrow and Puts Insurmountable Obstacles in the Path of Health Care Providers
S. 3275’s purported “life exception” is unacceptably narrow and puts so many obstacles in the path of health care providers that it is meaningless.
Even when a pregnant person’s life is at risk, S. 3275 forces providers to “wait and see” whether the patient really would die or suff er “substantial and irreversible physical impairment of a major bodily function” before performing an abortion.
The exception does not extend to mental illness a patient could be experiencing, meaning that an individual who is suicidal could be denied a lifesaving abortion.
S. 3275’s Narrow Rape and Incest Exception Ignores the Experiences of Sexual Assault Survivors
S. 3275 ignores the experience of a sexual assault survivor by imposing requirements that would deny a survivor control at a critical time and force a survivor to take actions they might not be ready or able to take, which could lead to further trauma and unnecessary risks.
S. 3275 forces adult rape survivors either to report the crime or to seek medical care or counseling at least
48 hours prior to getting an abortion. To comply with this requirement, not only does a survivor have to see a provider other than the one providing the abortion, but they cannot see any provider in the same facility where abortions are performed (unless it is a hospital). This requirement is burdensome and diff icult. Sexual assault survivors may choose not to report the assault for a variety of reasons. And, depending on the availability of medical care in the area where an individual lives, it may also be impossible for some, particularly survivors living in medically-underserved areas, to meet the requirement.
S. 3275 only exempts a survivor of incest if they are a minor. And it only exempts minor survivors of rape and incest if they report the crime to law enforcement or a government agency.
S. 3275 requires that rape and incest survivors provide documentation that they met the medical or counseling care or reporting requirements before they can get an abortion.
Throughout a pregnancy, a patient should be able to get the care they need. S. 3275 denies that to countless people in this country. S. 3275 is an unconstitutional, cruel bill that exposes politicians’ eff orts to erode the legal right to abortion.
1. See, e.g., Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 879 (1992) (“[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability).
2. The U.S. Supreme Court has made clear that, even after viability, any prohibition on abortion must include an exception for the pregnant individual’s health. Roe v. Wade, 410 U.S. 113, 165 (1973); see also Casey, 505 U.S. at 879.
3. See, e.g Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, 389 F. Supp. 3d 631, 633 (W.D. Mo. Aug. 27, 2019), Bryant v. Woodall, No. 16-CV-1368, 2019 WL 1326900 (M.D. N.C. March 25, 2019); McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015) Paul A. Isaacson, M.D. et al. v. Tom Horne, Attorney General of Arizona, et al. 716 F.3d 1213 (2013) (Arizona law); McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho 2013) (Idaho law); Lathrop, et al. v. Deal, et al., No. CV224423, (Sup. Ct. of Fulton Cnty., Ga., Dec. 21, 2012) (Georgia law). The U.S. Supreme Court refused to hear an appeal of the Arizona case, leaving in eff ect the ruling from the appellate court striking down the law as unconstitutional.
4. “ACOG strongly opposes political eff orts to limit a woman’s ability to get the care she needs, specifically, attempts to ban abortions through medically unnecessary cutoff points . . . H.R. 36 [a previous iteration of S. 3275 that would similarly impose a nationwide 20-week ban], the proposed legislation in the U.S. House of Representatives . . . is unconstitutional and a gross interference in the delivery of care.” American Congress of Obstetricians and Gynecologists (October 3, 2017), available at https://www.acog. org/About-ACOG/News-Room/Statements/2017/ACOG-Opposes-US-House-of-Representatives-Abortion-Ban.