Reproductive rights supporters marched in Phoenix to mark Roe v. Wade’s anniversary in January 2024. Arizona voters approved an amendment restoring abortion access up to fetal viability in the fall. (Photo by Gloria Rebecca Gomez/Arizona Mirror)

Erika Christensen decided to become a patient advocate for abortion later in pregnancy after she had to travel from New York to Colorado to get a third-trimester abortion.

Christensen found out her wanted pregnancy wasn’t viable around 30 weeks. At that time in 2016, New York banned abortion after 24 weeks of pregnancy, and only allowed abortions after that limit to save a patient’s life.

She and her husband were able to borrow thousands of dollars from her mother and put last-minute travel funds on a credit card to access abortion care across the country, Christensen told States Newsroom.

“At every stage, I realized how many pieces had to be in the perfect place for me to be able to do that, to be able to get this urgent health care that I desperately needed,” she said.

When she and her husband returned home to New York, a lawyer at the state American Civil Liberties Union affiliate reached out and asked if they wanted to be advocates. They led a grassroots effort to get legislation passed in 2019 that protected abortions after 24 weeks for fetal abnormalities and to preserve a patient’s health.

The Reproductive Health Act also decriminalized abortion later in pregnancy and allowed health care providers besides physicians to perform abortions. Former Democratic Gov. Andrew Cuomo signed the bill into law on Jan. 22, 2019, the anniversary of the U.S. Supreme Court’s Roe v. Wade ruling that protected the right to an abortion nationally.

This year would have marked the 52nd anniversary of Roe, which ensured abortion rights until fetal viability, when a fetus can survive outside the womb — generally thought to be around 24 weeks. Only about 1% of all abortions in the United States happen after that point, typically for medical reasons, research shows.

But a conservative-majority bench overturned Roe nearly three years ago, upending abortion access across the nation with the Dobbs v. Jackson Women’s Health Organization decision. States rolled out a patchwork of varied health care restrictions.

Twelve states ban most abortions today, while voters in 10 approved ballot measures enshrining the right into state constitutions. Most of the states with constitutional protections have fetal viability limits.

“Advocates, activists and folks in the movement have different opinions about how we reach the ideal policy on reproductive rights and justice, and initiatives and laws may vary from state to state depending on the political realities that we see,” said Ashley All, president of Kansas Coalition for Common Sense, who has worked on several successful abortion-rights initiatives.

Some within the reproductive rights movement argue that gestational bans on abortion later in pregnancy cause patients harm, and say that the protections of Roe — the 1973 Supreme Court said abortion is a privacy right based on the due process clause of the 14th Amendment — are insufficient.

Renee Bracey Sherman is the founder of the nonprofit WeTestify, a nonprofit devoted to evaluating and shifting the narrative around abortion.

“Allowing the public to vote on personal medical decisions is wrong and completely ridiculous,” she said. “But somehow it’s acceptable with abortion, and then doubly acceptable when it comes to later abortion. We have a population that does not understand how anatomy works, how pregnancy works, how abortions happen, and why people need later abortions.”

In pregnancy, “viability” isn’t straightforward and can be used in more than one way. The word can reference whether a pregnancy is expected to develop normally or if it could lead to a miscarriage, according to the American College of Obstetrics and Gynecology. And fetal viability is the point in pregnancy when a fetus is able to survive outside of the womb. Premature babies have a 42% to 59% chance of survival at 24 weeks, according to ACOG and the Society for Maternal-Fetal Medicine.

Many states only allow abortion after 24 weeks in cases of fetal anomalies or if the patient’s life or health is at risk. Alaska, Colorado, New Jersey, New Mexico, Oregon, Vermont and Washington, D.C., have no fetal viability limits on abortion.

ACOG, the national OB-GYN organization, “strongly opposes policy makers defining viability or using viability as a basis to limit access to evidence-based care” and said the decision to terminate a pregnancy should be between patients and medical providers.

Viability language in policymaking stemmed from the Roe decision in 1973, according to Adrienne Ramcharan, assistant director of state policy at Physicians for Reproductive Health and MiQuel Davies, the former public policy director at the organization.

“While this framing was built into the law, researchers and medical providers who care for pregnant people recognize that viability is not a set point in time,” Ramcharan and Davies wrote in August 2024. “Instead, it occurs along a continuum shaped by an individual’s medical history, access to medical care, and demographic characteristics among other things.”

Later abortion care is criminalized and stigmatized, Christensen said, causing the cost of care to go up. Plus, abortion providers willing to offer the procedure later in pregnancy are scarce.

“I have the benefit of having directly experienced a viability ban and knowing in my core how unjust it was, how my humanity was erased, my dignity was erased,” Christensen said.

She is the co-author of a memo published last year titled Abortion Justice Now. The authors wrote that they reject efforts to restore Roe-era limits into abortion policy.

“Gestational and viability limits will disproportionately impact the most marginalized among us, either denying them critical care or pulling families toward financial instability,” they wrote. “These limits will result in an inequitable ability to exercise rights, allow for criminalization in pregnancy, and ultimately reinforce the dangerous assertion that the government has any role in regulating a pregnant person’s body.”

Abortion opponents, including doctors, sometimes hinge their argument on the concept of fetal viability.

“I think, certainly, beyond the point where a child can survive outside of his or her mother, there would never be a reason you would need to intentionally end that child’s life,” Dr. Christina Francis, chief executive officer at the American Association of Pro-Life Obstetricians and Gynecologists, told lawmakers on a U.S. Senate committee in June, States Newsroom reported.

“You would simply deliver that baby,” Francis said. “You’d take care of mom and you’d take care of baby in an appropriate way.

Patients may seek abortion after fetal viability for several reasons: They receive a fetal fatal diagnosis later in pregnancy, giving birth could risk their life or health, they couldn’t access or afford an abortion earlier, or they didn’t know they were pregnant, according to ACOG.

Polling shows that Americans support abortion in most cases, but not necessarily after fetal viability. A June 2023 poll from Gallup found that 69% of respondents said abortion should be legal in the first three months of pregnancy, while 37% said it should be legal in the second trimester and 22% in the third.

But the nonpartisan public opinion research firm PerryUndem found last year that most public polling on abortion later in pregnancy lacks context. Of those who heard stories about women with complications later in pregnancy who needed to travel out-of-state for abortions, 69% said abortion should be legal in all cases.

U.S. Sen. Tina Smith, a Minnesota Democrat, speaks during a press conference inside the U.S. Capitol building on Wednesday, Jan. 22, 2025. Also pictured is Sen. Patty Murray, D-Wash., left, and Sen. Jeanne Shaheen, D-N.H. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — U.S. Senate Democrats blocked legislation Wednesday that would have established penalties for health care professionals who don’t provide medical care for infants born following an attempted abortion, arguing the bill would have kept parents from making decisions about care for newborns delivered early following a fatal fetal diagnosis.

Republicans said the issue should lend itself to common ground between the two political parties, citing a “loophole” in federal law that could potentially permit health care providers to allow an infant to die, instead of using medical interventions.

The 52-47 procedural vote needed the support of at least 60 senators to advance under the chamber’s legislative filibuster rules, but no Democrats voted to move the bill toward final passage. Tennessee Republican Sen. Bill Hagerty didn’t cast a vote.

The vote marked the first time this year Republicans, who now control both the House and Senate, brought up an abortion bill for debate. The vote took place on the anniversary of the Roe v. Wade decision that established a constitutional right to abortion in 1973, but was overturned by the Supreme Court in 2022.

Oklahoma Republican Sen. James Lankford, who sponsored the eight-page bill, said debate on the legislation was “not just an academic issue,” but one with real-world implications.

“It’s rare, but the question is, what do we do in those situations? How do we track this? How do we engage on it?,” he said.

When an abortion results in a live child, Lankford said, “the current practice is everyone kind of backs away and allows the child to die on the table by exposure because it is against American law in every single state to take the life of a child. But if everybody just steps back and watches the child die that’s okay.”

Lankford cited the story of Melissa Ohden, a woman he says lived following an attempted abortion because a Neonatal Intensive Care Unit, or NICU, nurse noticed her crying and breathing in a pile of medical waste, before rushing her to the emergency department for medical care. Ohden is founder and CEO of the Abortion Survivors Network.

“It was years later that she learned her adopted mom had adopted her because her birth mom literally didn’t know she still existed. Her birth mom was never told that the abortion, quote unquote, didn’t work,” he said.  

‘Killing a baby is illegal in every single state’

Washington state Democratic Sen. Patty Murray said during a floor speech Tuesday the bill was a “sham” and a “disgrace,” before noting that “killing a baby is illegal in every single state.”

“In fact, we passed a law in 2002 that made that crystal clear. I would know because I was here. It passed unanimously,” Murray said. “Doctors already have a legal obligation to provide appropriate medical care to any infant born in this country.”

The legislation, she said, would have created “a new government mandate that would override the best judgment of grieving families who find out their fetus has a fatal condition.”

“And it would create new, medically unnecessary barriers for doctors and patients, at a time when doctors already have their hands tied when it comes to providing basic reproductive health care,” Murray said.

New Hampshire Democratic Sen. Jeanne Shaheen said during a press conference on Wednesday ahead of the vote she wasn’t concerned about Republicans using the vote against vulnerable incumbents up for reelection in 2026.

“I have run now in seven statewide races in New Hampshire and in every single one of those races, I have been attacked by Republicans for my support for allowing women to make their own decisions,” Shaheen said.

“It’s not a decision that I should make as a senator, that the court should make, that the men who are in the Senate should make,” she added. “It’s a decision for women and their families. And for those people who don’t understand that, they are on the wrong side of morality on this one.”

Georgia Sen. Jon Ossoff and Michigan Sen. Gary Peters are the two most vulnerable Democrats up for election in 2026, both representing states President Donald Trump won in November’s presidential election.

Details of Senate legislation

Lankford’s bill would have required medical providers “to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age.”

The bill adds that anyone who “intentionally performs or attempts to perform an overt act that kills a child” would be charged with “intentionally killing or attempting to kill a human being.”

It is already illegal to kill children, or adults, under federal law as well as state laws.

The House is set to vote on its own version of the bill, sponsored by Missouri Republican Rep. Ann Wagner and co-sponsored by 130 GOP lawmakers, later this week. But without Democratic backing in the Senate, the bill won’t make it to Trump’s desk.

Wagner’s House bill appeared extremely similar to the Senate version, though the two weren’t marked as “related bills” on Wednesday in the congressional database.

The House approved a version of the bill two years ago following a mostly party-line 220-210 vote, with one Democrat voting for the measure and one voting “present.”

The bill didn’t come up for a vote in the Senate, which was controlled by Democrats at the time.

Congress approved a similarly named, Born-Alive Infants Protection Act of 2002, more than two decades ago, with broadly bipartisan support.

Groups weigh in

Dr. Stella M. Dantas, president of the American College of Obstetricians and Gynecologists, wrote in a statement sent to States Newsroom that the “offensively named legislation does not reflect the reality of abortion later in pregnancy, harms families who receive devastating diagnoses and restricts their ability to choose the path of medical care that is right for them.”

“This legislation is not evidence-based,” Dantas wrote. “Its impacts fall with crushing weight on families trying to access reproductive care in devastating circumstances and limits how clinicians are able to provide care.”

The American College of Obstetricians and Gynecologists writes on a webpage about the differences between abortion and perinatal palliative care that “the idea of ‘abortions’ being performed after delivery of a fetus is” misinformation and that “no such procedure exists.”

Perinatal palliative care, ACOG explains, “encompasses a coordinated care strategy that centers on maximizing quality of life and comfort for newborns who have life-limiting conditions in early infancy.”

“When providing perinatal palliative care, obstetrician–gynecologists’ chief aim is to alleviate the newborn’s suffering and honor the values of the patients involved—namely, the newborn’s parent or parents,” the website states. “Ultimately, the parent or parents, in consultation with their physician, decide which course of perinatal palliative care to pursue.”

Eighteen medical organizations — including ACOG, the Society for Maternal-Fetal Medicine, the American Academy of Nursing and the American Academy of Pediatrics — sent a letter to Congress on Wednesday urging lawmakers not to pass the bill.

Susan B. Anthony Pro-Life America President Marjorie Dannenfelser released a written statement that the 2024 election showed Americans “have clearly rejected the extreme pro-abortion agenda.”

“We cannot continue to turn a blind eye to that baby fighting for his or her life, whether in a hospital or an abortion center, whether that little one is deemed ‘wanted’ or not,” Dannenfelser wrote. “These children must not be discarded like trash. With a new administration in Washington and new majorities in the Senate and House, there has never been a better or more urgent time to protect the life of every newborn equally.”

A SBA webpage about the legislation notes that while the 2002 law was “a step in the right direction,” it didn’t include any “enforcement mechanisms.”

“Federal law and 31 states do not adequately protect the lives of infants born alive after botched abortions (state and federal laws are not necessarily redundant, either),” the webpage states.

Anna Bernstein, principal federal policy adviser at the Guttmacher Institute, wrote in a statement to States Newsroom the bill “misrepresents the reality of care later in pregnancy and seeks to criminalize and intimidate health care providers, despite existing laws that already ensure appropriate medical care is provided.”

“By perpetuating disinformation and stigma, this bill undermines reproductive autonomy and paves the way for political interference in deeply personal and painful decisions, particularly for families facing tragic situations such as fatal fetal diagnoses,” Bernstein wrote.

The Guttmacher Institute, she wrote, “strongly opposes this bill, as it disregards the complexities of people’s lives, attempts to criminalize providers, and perpetuates misinformation about abortion care.”