There has been ubiquitous media coverage of the Supreme Court’s consideration of a Mississippi law that bans most abortions after 15 weeks. While there has been exhaustive coverage of the potential legal implications of the case, little attention has been paid to the practical impact of a ban on abortions after 15 weeks. It turns out, there would be very little. That is because almost all abortions in the U.S. and in Texas are performed within the first 15 weeks.
The latest and most comprehensive national data comes from a CDC 2019 Survey. Forty-three states’ data included the gestational age of the fetus at the time the abortion was performed. According to this data 95.7% of abortions were performed before the end of the 15th week.
The Texas data is a little more complicated to analyze. First, Texas attempts to calculate gestational age from conception, whereas most of the medical community counts weeks from the end of a woman’s last menstrual cycle. This averages out to about a two-week difference. Also, Texas lumps two weeks together in its data. So, the best we can do is estimate the number of abortions performed before the end of the 15th week in 2020 at something in the 94.6-97.2% range.
In absolute numbers, these two datasets indicate that about 26,000-28,000 abortions were performed nationally and about 2,500-3,000 in Texas after 15 weeks.
But it is not clear that even all of these abortions would have been banned by the Mississippi law. It includes exceptions for “a medical emergency” and cases of “severe fetal abnormalities,” both of which are defined quite generally. (See §§ 4(a) & 4(b) and §3 for definitions of these terms).
I spoke to a Houston OB-GYN doctor who told me that virtually all of the abortions performed after the 15th week are based on a serious medical condition, such as fetal deformity, fetal death or other compilations affecting the mother’s health. If that is indeed the case, then the Mississippi law, as written, would likely have very little practical effect on number of abortions performed.
Of course, the litigation over the Mississippi law could potentially have a profound effect on future abortion regulation, especially if the Court were to leave abortion restrictions entirely to the States as several justices appeared to be prepared to do. It would also open up the possibility of a federal statute on abortion.
However, it is interesting that the current standard in Roe of “viability,” which has historically been considered to be about 24 weeks, essentially never comes into play in the actual abortion practice. According to the CDC’s data, only about 2,000 abortions (.04%) were performed sometime after 21 weeks (the last tranche included in the data). Texas only showed 8 abortions (.01%) after 20 weeks and none after 25 weeks. Medical emergencies and fetal deaths could easily account for all of this small number of abortions. In other words, there are virtually no late-term “elective” abortions.
I found it interesting in this regard that Chief Justice Roberts and Justice Barrett seemed to be considering an alternative to the viability standard as a way to uphold the Mississippi 15-week ban without wholesale rejecting a privacy right tied to abortion and completely overturning Roe. I have no idea what the Court will do but abandoning the viability standard without turning abortion regulation completely back to the States or Congress might be the middle ground on which it settles.