Pain-Capable Unborn Child Protection Act

The Pain-Capable Unborn Child Protection Act has become known as Micah's Law because of Micah Pickering, a boy from Iowa who was born prematurely at 22 weeks' gestation[2] in 2012 and survived; Pickering appeared in a 2016 Susan B. Anthony List election advertisement criticizing Hillary Clinton's support for legal abortion after 20 weeks' gestation.[3][4] Pickering and his family have appeared at press conferences supporting the bill.[3][5]

In the legislative findings section, the bill states that pain receptors (nociceptors) "are present throughout the unborn child's entire body", that "nerves link these receptors to the brain's thalamus and subcortical plate by no later than 20 weeks after fertilization", and that anesthesia is routinely administered to fetuses undergoing fetal surgery (thus supporting the conclusion that fetuses feel pain).[6]

The bill prohibits all abortions after 20 weeks post-fertilization unless the abortion is judged necessary to save the life of the mother; is the result of a rape of an adult woman who has received counseling or medical treatment for the rape; or is the result of an act of rape or incest against a minor that has been reported to a law enforcement agency or other government authority.[6]

The bill imposes a criminal penalty against any person performing an abortion after 20 weeks. That penalty consists of a fine, imprisonment for up to five years, or both.[6] It bars any prosecution of a woman receiving an abortion after 20 weeks, and allows any woman on whom an abortion is performed after 20 weeks in violation of the law to seek civil action against the person who performed the abortion.[6]

The bill was first introduced by Rep. Trent Franks of Arizona in the 113th Congress on April 26, 2013.[7] The bill passed the House on June 18, 2013 by a vote of 228–196.[8][9] It was introduced in the Senate in November 2013 by Sen. Lindsey Graham of South Carolina.[10]

Franks re-introduced the bill in the 114th Congress on January 6, 2015. The House passed the bill by a vote of 242–184 on May 13, 2015.[11][12] Graham re-introduced the bill in the Senate in June 2015. On September 22, 2015, the bill was filibustered in the Senate. Fifty-four senators voted for cloture (in other words, to send the bill to the Senate floor) and 42 voted against cloture; accordingly, the bill failed to reach the 60-vote threshold needed to break the filibuster.[13][14]

Franks re-introduced the bill in the 115th Congress on January 3, 2017. On October 2, 2017, the White House issued a statement of policy announcing that Donald Trump's advisors would recommend he sign the bill if it reached his desk.[15] The House passed the bill on October 3, 2017, by a vote of 237–189.[16][17] Graham introduced the bill in the Senate on October 5, 2017. The bill was considered by the Senate on January 29, 2018. The bill failed to receive the 60 votes needed for cloture; the vote was 51–46.[18] Forty-eight Republicans and three Democrats voted for the bill, while 44 Democrats and two Republicans voted against it.[19]

Numerous polls have shown that a ban on abortions after 20 weeks is supported by a majority or a plurality of Americans.[20] In 2013, The Washington Post reported that women supported banning abortions after 20 weeks in higher numbers than men.[21] The following table contains data from public opinion polls that asked Americans about their thoughts on banning abortions after 20 weeks.

An additional poll not included in the table above was conducted by the Washington Post and ABC News in July 2013 asked votes to choose between allowing legal abortion without restriction in the first 24 weeks of pregnancy and allowing it without restriction in the first 20 weeks of pregnancy. Given that choice, 56% of adults preferred the 20-week threshold, while 27% supported a 24-week threshold.[22]

Planned Parenthood commissioned an August 2013 poll that asked respondents whether abortion should be legal or illegal in the following scenarios: carrying the pregnancy to term would cause serious long-term health problems to the mother; the fetus is not viable and personal/health circumstances are such that she shouldn't continue pregnancy; the pregnancy was the result of rape or incest; and the fetus has severe abnormalities that would cause fetal death or extreme disability.[23] In each scenario, between 58% and 66% respondents said abortion after 20 weeks should be legal.[23]

After the House passed the bill in 2015, Hillary Clinton criticized the bill as "a direct challenge to Roe v. Wade, which has protected a woman's constitutional right to privacy for over forty years."[24]

The 2016 Republican Party national platform specifically endorsed the federal version of the act.[25] Most of the candidates running for the Republican nomination for president in 2016 pledged support for a 20-week abortion ban.[26] In September 2016, Donald Trump—then the Republican nominee for President—wrote a letter to anti-abortion leaders committing to sign the Pain-Capable Unborn Child Protection Act if elected.[27]

Pain-capable abortion bans in the U.S.

  Banned based on fetal pain

  Ban enacted not based on basis of fetal pain

  Ban blocked by courts

  No ban

As of October 2017, 21 states had passed laws banning abortion after 20 weeks' gestation. In Arizona and Idaho, such laws have been blocked by courts and are not in effect.[28]

In 2012, Trent Franks introduced the District of Columbia Pain-Capable Unborn Child Protection Act, which would use Congress's legislative authority over the District of Columbia under Article I of the United States Constitution to prohibit abortions in D.C. after twenty weeks. The bill received majority support in the House by a vote of 220–154, but failed to achieve the two-thirds majority needed for passage.[29][30]

• Text of bill as passed by the House in October 2017