But now, 14 weeks into the pregnancy, they’re facing a potentially heartbreaking situation. During a routine screening, Hyden’s doctor found fetal cystic hygroma, a condition in which extra fluid builds up as the fetus develops. The condition can go away on its own over the course of weeks, or it can get increasingly more severe, leading to fetal brain damage, death of the fetus or miscarriage.
Now, as Hyden waits to find out if she will be able to deliver a viable child, she’ll have an added level of stress: a law passed earlier this month in her home state of Kentucky prohibiting termination of a pregnancy 20 weeks after conception. The law means Hyden might have to make a terrible choice: have an abortion when her child could still be viable, or risk carrying a severely brain-damaged or dead fetus to term.
“This would be our first child,” Hyden says. “We’re trying to give it every chance — it could clear up. But when you have these 20-week bans, it puts you on this conveyor-belt timing that’s very terrifying. The simple truth is that women don’t want to carry a baby that’s going to be dead around their whole pregnancy.”
Hyden’s dilemma comes as conservative legislatures in Ohio and Kentucky have rammed home some of the most restrictive anti-abortion legislation in the country.
The result: Pro-choice women’s health advocates in those states face their biggest fights in decades as access to abortion procedures erodes. The most recent bans in the Buckeye and Bluegrass states are part of a larger wave: 18 states, including Indiana, have similar bans, though federal courts have blocked those laws in Iowa, Georgia and Arizona for being unconstitutional.
These restrictions could be just a prelude of coming challenges for pro-choice advocates. Republican president-elect Donald Trump has promised, over time, to appoint Supreme Court justices who will overturn Roe v. Wade, the 1973 Supreme Court decision that declares bans on abortion unconstitutional.
Supporters of the new legislation in Kentucky and Ohio say the bills are designed to prevent fetuses from feeling pain and to continue challenging the legality of abortion.
“I agree with Ohio Right to Life and other leading, pro-life advocates that SB 127 is the best, most legally sound and sustainable approach to protecting the sanctity of human life,” Ohio Gov. John Kasich said in a statement after signing Ohio’s 20-week ban.
Ohio Right to Life’s Mike Gonidakis praised Kasich for signing the bill and framed it as part of a larger fight.
“As science continues to develop and as public opinion continues to change, we’re going to continue to chip away at Roe,” he said.
But pro-choice advocates say the laws are unconstitutional under Roe v. Wade, will disproportionately affect low-income women and will have unintended consequences for women like Hyden.
“The 20-week abortion ban callously disregards the unique circumstances that surround a woman’s pregnancy,” NARAL Pro-Choice Executive Director Kellie Copeland said last month in response to new Ohio restrictions. “Kasich’s actions today will fall hardest on low-income women, women of color and young women. History will not judge Gov. Kasich’s disregard for women’s health kindly.”
Only about 1.5 percent of abortions are performed after 20 weeks, research suggests, and most of those happen due to medical issues like Hyden’s. What’s more, science is far from conclusive that fetuses can actually feel pain at 20 weeks.
“Evidence regarding the capacity for fetal pain is limited, but indicates that fetal perception of pain is unlikely before the third trimester,” researchers writing in the Journal of the American Medical Association concluded in 2005.
Later studies have generally confirmed this belief, placing the time when pain can be sensed somewhere between 26 and 30 weeks — when the cerebral cortex begins functioning. A few scientists cited by anti-abortion activists theorize that the cortex may not be necessary to feel pain, but most researchers reject that theory. The general consensus is that ability to feel pain begins well after a fetus is viable (generally at 24 weeks) and no longer legally allowed to be aborted.
Despite that evidence, Republicans in the Ohio General Assembly last month passed SB 127, or the Pain-Capable Unborn Child Protection Act, the ban on abortions 20 months after conception. Tucked within another bill, State House Republicans also passed a bill that would have banned abortions after the detection of a fetal heart beat — often as early as six weeks.
Kasich vetoed the more restrictive fetal heartbeat bill over concerns it was unconstitutional. But conservatives in Ohio’s General Assembly, who have gained a bigger majority in both the state House and Senate this term, look likely to try again — this time with a majority that could overturn Kasich’s veto.
Republican lawmakers in Kentucky, newly emboldened by recent elections that delivered them control of the state House for the first time in 95 years as well as control of the Senate and governor’s mansion, passed similar restrictions Jan. 7. Both states’ bans make no exceptions for cases of rape, incest or mental health concerns and draw very narrow standards for abortions allowed due to concerns for the mother’s health.
The legislation has caused big pushback from pro-choice advocates. Hundreds representing Planned Parenthood, the Kentucky ACLU and other groups gathered in the Kentucky state House earlier this month to protest the restrictions as lawmakers heard testimony on the bills.
“This is our house, too,” said Kate Miller of Kentucky’s branch of the ACLU, vowing to fight the new laws. “We’ve been here before, and we’ll be here again.”
Kentucky Gov. Matt Bevin pledged to sign the 20-week ban bill into law first as a flood of conservative legislation hits his desk. Among other bills that Bevin looks likely to sign: legislation requiring women to receive an ultrasound, and, if possible, listen to the heartbeat of a fetus before they undergo an abortion.
“The one that, frankly, I think is worthy of getting the first signature, the first one signed in this new legislature, is one that protects human life beyond 20 weeks of gestation,” Bevin said in a video after the bill passed.
Democrats pushed back against both the Ohio and Kentucky bills as unproductive during a time when both states should be focused on other problems, including pervasive poverty among individuals, families and children.
Kentucky Sen. Reginald Thomas, a Democrat from Lexington, asked why the legislature didn’t put priority on addressing those problems instead of limiting abortion.
“If we truly want to be pro-life and we truly want to be pro-child, then let’s be pro-life and pro-child in every sense of the word,” Thomas said during testimony on the restrictions.
More than 25 percent of children live in poverty in both Ohio and Kentucky, according to Census data. That’s an increase since 2008, during the Great Recession, when 20 percent of Ohio children and 23 percent of Kentucky children were poor.
As poverty levels rise, more women have depended on clinics like Planned Parenthood for general health needs, pregnancy-related care and pregnancy termination, advocates say.
But the number of clinics has dwindled in recent years. Closures have come after successive waves of regulations on clinics over the past few years have reduced the number of facilities open to women. There are only nine clinics left in Ohio — including one in Cincinnati — and only one in all of Kentucky. In 2011, Ohio had 16 providers and Kentucky had three.
As both pregnancy care and abortions become harder to obtain, opponents of abortion restrictions worry low-income women will be the hardest hit.
“We’re very lucky,” Hyden says, explaining that she was able to get extra screenings some women find unobtainable. “According to our obstetrician, with our particular condition, a lot of women don’t find out until their second trimester. Women who don’t have easy access to that technology and that level of care will be most affected by this.” ©