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A Pro-Life Consensus for 12-15 Week Abortion Bans… Why and Why Not

by | May 9, 2023

By David N. O’Steen, Ph.D.

Editor’s note. This appears in the May digital edition of National Right to Life News. Please share this and all other content you find helpful to pro-life family and friends.

Some elements of the pro-life movement not connected to National Right to Life have sought to rally support for a “consensus” in support of a 12-to-15-week abortion ban or for a national minimum standard.

But is this a wise strategy now in the post-Dobbs environment?  Not even a little.  Here’s why.

The proposed current 12 to 15-week consensus strategy may have been derived from two pre-Dobbs strategies.

Prior to the Dobbs decision National Right to Life had pioneered state laws protecting the unborn child from elective abortion after 20 weeks, a time at which then current evidence showed an unborn child could feel pain.  

The primary purpose of these laws was to challenge Roe by presenting to the U.S. Supreme Court a new question, namely, could abortion be restricted based on the physiological characteristic of the child being able to feel pain. 

These laws also had educational value. They pointed out the humanity of the child and they could save some lives, although only 1% to 1.5% of abortions are performed after 20 weeks, with most of them for life of mother or medical emergency reasons. 

Probably fearing that the High Court might uphold these “Pain Capable” laws, the abortion establishment chose not to risk taking them to the Supreme Court and they were in effect in 16 states at the time of Dobbs.  By the time of the Dobbs decision, handed down June 24, 2022, new data showed the likelihood of unborn children feeling pain as early as 15 weeks.  However, it was never the intention of National Right to Life to establish such laws as any kind of “consensus” goal once Roe was reversed.

Another pre-Dobbs strategy involved the Mississippi 15 week ban which reached the Supreme Court and did result in overturning Roe. 

Again, this was specifically initiated for the purpose of testing Roe, not as a consensus goal for the pro-life movement. Now that it has served its purpose Mississippi has in place strong protections for the unborn, both from heartbeat and throughout pregnancy.

But those pre-Dobbs strategies were then, post-Dobbs is now, almost eleven months later.

As a tool to save lives, a 15-week ban is very, very weak.  Using data from the Centers for Disease Control (CDC) and/or the Guttmacher Institute, about 95% of abortions occur by 15 weeks and of the remaining 5% many are for life of mother or medical emergency reasons. 

 Nor is a ban at 12 weeks very protective since about 90% of abortions are performed by then.

So why pursue such a consensus now?  That’s a good question with no apparent good answer.

There is certainly nothing to be gained politically by accepting a 12 to 15 week consensus.  Abortion advocates will label anything that would save even one baby as “extreme, extreme, extreme.” Just look at their opposition to even protecting abortion survivors!

Further, in passing a 12- or 15-week ban there is a great danger that it could mark the end of meaningful results to protect the unborn.  

There are many in the political realm and among the public at large who may not actually be pro-abortion, and perhaps even consider themselves pro-life, who would love to see the issue “solved.”

And a 12- or 15-week limit seems like such a reasonable solution…for everyone but the baby.

The Dobbs decision radically changed the environment for the pro-life movement.  We can now focus on what can actually save as many lives as possible in each individual state, rather than only on what Roe would allow.  In doing so bans based on 12 or 15 weeks are not the way to go, rather the focus should be on reasons for abortion. 

National Right to Life’s most recent McLaughlin poll does show overwhelming public support (ranging from 81% to 88%) for exceptions for life of mother, rape, incest, or medical emergency, reasons which constitute only about 5% of all abortions.  But the same poll shows strong majority support (72%) for allowing abortion only for these reasons, which would eliminate up to 95% of abortions.  This can be compared to a report of a recent NPR/PBS Marist poll which found that 66% would allow abortion only in the first three months of pregnancy, but that would eliminate only about 10% of abortions. 

Time based bans are not generally where our movement should go.  There may be rare exceptions such as possibly in a state where there is need to test a state supreme court decision that has found a right to abortion.  And a state law that allows abortion only before a detectable heartbeat with the popular exceptions can potentially stop nearly half of abortions based on CDC figures and the Texas pre-Dobbs experience.

The Dobbs decision has given us great opportunities to save children’s lives and many strategic choices to make. For their sake let’s choose carefully and wisely: 12- or 15-week bans are neither.

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