Pennsylvania state capitol Credit: Harvey Barrison/Flickr

The Pennsylvania House of Representatives is back in session this week, and some lawmakers there are backing two nearly-identical controversial abortion bills that would shorten the amount of time women have to get an abortion. They’ve defended the legislation, saying both bills include safeguards for women’s health and have exceptions when the health of the woman involved is at stake.

The bills — while a priority for the Republican party in Pennsylvania — aren’t yet scheduled for a vote in the House Health Committee. (Just because it’s not on the agenda now doesn’t mean they won’t vote! Canny lawmakers.) But it’s worth examining how what’s in them differs from current law and why stakeholders disagree on what the legislation actually means for women seeking an abortion, especially those who are doing so because of medical complications.

The bills — one drafted by the House and one by the Senate — would essentially do the same things:

  1. They would both amend Pennsylvania’s current Abortion Control Act to change the current 24-week cutoff for abortions to 20 weeks, with a few limited exceptions. There is no exception for rape and incest. A memo attached to the legislation cites studies often touted by pro-life organizations that conclude fetuses can begin to feel pain at 20 weeks.
  2. They would make a technique called “dilation and evacuation” illegal and penalize doctors for performing it. The method is considered to be the safest for the mother if an abortion is taking place in the second trimester and includes doctors using forceps to remove a fetus. Language in the bill calls the dilation and evacuation method “dismemberment abortion,” a characterization state medical associations have disputed.

Medical experts have said both practices the bills attempt to ban — abortion after 20 weeks and the dilation/evacuation method — are uncommon and most often used in cases of medical necessity or fetal deformity. In 2014, 328 abortions (out of 32,000) occurred after 20 weeks statewide, according to the state Department of Health. In addition, just 1,550 dilation and evacuation abortions were performed in 2014, and make up less than 5 percent of all abortions performed.

Some opponents say the bills could force doctors to choose between a medical process to help a patient or committing a felony, an issue that came up during a Senate Judiciary Committee hearing on the measure before it was passed by the full Senate last month. During the meeting, proponents of the legislation said it’s meant to protect fetuses that could be viable before 24 weeks, and that there are exceptions to protect the health of women.

“There are exceptions in this bill,” bill co-sponsor Sen. John Eichelberger, R-Blair, said during the hearing, specifically noting the life of the mother and “major bodily functions” are protected. “This is a well thought-out bill. I don’t want anybody to have any misperceptions that this was something that was thrown together and the medical community didn’t have anything to say about it. That is not the case at all.”

Eichelberger contends drafters of the legislation met with members of the medical community, though there’s so far been no public testimony on either measure. The Pennsylvania Medical Society has opposed similar measures.

So let’s take a look at the language in both bills, which is the same as the language that already exists in Pennsylvania’s abortion statute, but that currently allows doctors to perform abortions up to 24 weeks instead of 20. Here’s what the health exception looks like:

It shall not be a violation of subsection (a) if an abortion is performed by a physician and that physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.

But the bill doesn’t exactly define “the substantial and irreversible impairment of a major bodily function” or what it means legally — for say, a jury considering charges filed against a doctor — the term “reasonably”  or “necessary” means in this context.

Sue Frietsche, a staff attorney with the Women’s Law Project, parsed the exception, saying that the law would be better written if it indicated a doctor would be protected if they were to make a “good faith” medical judgement in performing an abortion post-20 weeks or via the dilation and evacuation method to protect the health of the woman seeking one.

She said banning abortion for an additional month in Pennsylvania would likely trigger this exception more often than it currently is and, because of that, send more women out of state to have abortions performed out of medical necessity. Opponents have also worried the ban would force women diagnosed with fetal anomalies at a routine ultrasound — usually performed between 18 and 20 weeks — to carry the fetus to term.

“It’s perfectly easy to write an accessible and usable health exception, and I think that’s not the purpose of this language,” Frietsche said. “I think it’s window dressing to try to make people incorrectly believe that doctors who are doing the right thing by their patients are not going to be subject to felony arrest.”

Frietsche said the Women’s Law Project is concerned that suicide and self-harm wouldn’t trigger the exception, and that fertility may not be considered a “major bodily function.” State Sen. Daylin Leach, D-Montgomery, asked specifically about this while the Senate was considering the measure, wondering whether or not protecting a woman’s fertility down the line could be a reason for a doctor to perform an abortion that would otherwise be illegal under this new statute. A spokesman for Leach said the senator still hasn’t received a response on whether that’s the case.

So when is a vote coming in the House? Its abortion bill — a similar version of which passed the Pennsylvania Senate 32-18 last month — hasn’t appeared on any agenda or list of upcoming votes. Neither the Senate bill nor the more recently introduced, almost-identical House bill are on the agenda for a Health Committee meeting slated for Tuesday, and it’s not clear which bill the committee may bring up for a vote first.

Committee chairman Rep. Matthew Baker (R-Bradford) wouldn’t indicate when his committee intends to consider either measure, telling Billy Penn only that “no timetable has been set for consideration of any proposals within the Health Committee aside from the bills currently listed on the agenda.”

The bill could be passed by the House this session and head to Gov. Tom Wolf’s desk after that. The Democrat has said he will veto the bill. Two-thirds of both chambers would have to vote in favor of overriding Wolf’s veto which, despite the governor’s use of his veto pen thus far, hasn’t happened.

This bill could be different though, as Pennsylvania’s pro-life caucus spans both sides of the aisle, and a veto override is certainly possible. Last year, the Pennsylvania House approved an even stricter abortion bill that would have required married women provide a notarized statement to their physician that they notified their spouse of the abortion. That language has been removed from current versions of the bill under consideration.

Pro-choice advocates have already indicated that if the legislature overrode a veto, they expect Attorney General Josh Shapiro, a Democrat, to challenge the law in court.

Anna Orso was a reporter/curator at Billy Penn from 2014 to 2017.