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Kelly voted in favor of the Women’s Health Protection Act, which failed on a 46-48 vote. The bill would have prohibited states from criminalizing and banning abortion of a viable fetus when the life and health of the woman are at risk. In theory, it could have allowed an abortion that is not strictly due to physical health.
Abortions that take place in the final weeks of pregnancy are exceedingly rare and involve a medical crisis. Terminations that take place at 21 weeks or later account for about 1% of all abortions, according to the Centers for Disease Control and Prevention.
Existing civil liability laws require providers to intervene when a patient’s life is endangered. Anti-abortion statutes in some states conflict with those civil laws.
In the abortion debate, Republicans have long claimed that Democrats support abortion without limit. During a Trump rally in his state, Arizona Republican and U.S. Senate hopeful Blake Masters deployed a version of this barb against Democratic Sen. Mark Kelly.
"He voted to legalize abortion up until the moment of birth," Masters said July 22.
Arizona’s primary election is Aug. 2, and polling puts Masters in the lead for the Republican nomination.
Masters’ campaign told us he was referring to Kelly’s vote for the Women’s Health Protection Act.
"The legislation, which Kelly also co-sponsored, mandates abortion on-demand until the moment of birth as federal law," said Masters campaign adviser Katie Miller. "It also removes nearly all existing state-level guardrails around abortion."
Masters’ claim fails to align with the facts for several reasons, most of them rooted in his focus on the very end of a full-term pregnancy.
In a May 2022 vote — before the U.S. Supreme Court overturned Roe v. Wade — Kelly backed the Women's Health Protection Act as a way to affirm the legal right to an abortion. It barred states from passing laws that prohibited abortion "after fetal viability when a provider determines the pregnancy risks the patient's life or health."
The bill failed on a 46-48 vote.
Contrary to what Master’s campaign said, the bill’s text does not mandate abortion on demand "until the moment of birth."
The woman would play a key role in any decision, but a plain reading of the text places equal responsibility in the hands of the physician. That fails to meet the commonly used definition of "abortion on demand."
"‘On demand’ means whenever I want, for whatever reason, or no reason," said Drexel University law professor David Cohen.
Requiring the provider’s agreement to the procedure is "the polar opposite," Cohen said.
Dr. Nisha Verma is a fellow at the American College of Obstetrics and Gynecology and a practicing OB-GYN in Delaware. Verma said that Masters’ claim is based on the false premise that pregnancies are being aborted in the very final weeks in the absence of a lethal fetal anomaly, or a health crisis. Generally, women who carry a pregnancy to that point, she said, want to keep their babies.
"I have cared for people who do receive terrible fetal diagnoses," Verma said. "For example, that their baby has not developed a brain and will not survive after birth, or who face life-threatening medical conditions and who need abortions in the third trimester."
Verma said these situations are rare.
At the national level, the Centers for Disease Control and Prevention tracks abortions by the weeks of gestation. Terminations that take place at 21 weeks or later account for about 1% of all abortions.
Arizona’s department of health services doesn’t have this data on its website, but slightly more granular information can be found in Texas. Texas data shows abortions that occur at 26 weeks or later. From 2008 through 2021, those represented about 0.01% of abortions.
Verma emphasized that when the woman faces a health crisis, abortion is far from the first option.
"I counsel my patients about the options, and in many situations, based on my patient's wishes, proceed with an induction of labor or C-section that aims to protect both the patient and the baby," Verma said.
The American College of Obstetrics and Gynecology sees signs that fear of strict abortion penalties has pushed doctors to delay medical treatment for pregnancies with severe complications.
The Women’s Health Protection Act can’t legalize something that is already legal. There are health exceptions in state abortion laws, and civil liability laws support medical intervention in grievous circumstances.
Teresa Collett, law professor at the University of St. Thomas School of Law, has argued in favor of abortion restrictions and served on the Roman Catholic Pontifical Council for the Family.
"Every state has an emergency exception in their general civil liability laws, and every state law limiting abortion to certain gestational ages or methods has a more specific emergency exception," Collett said.
A century of civil liability legislation has given doctors a legal responsibility to give the best possible care.
It is a complex legal framework, hugely driven by the facts of each individual situation. Maxwell Mehlman, law professor and co-director of the Law-Medicine Center at Case Western Reserve University School of Law, said that generally, in these settings, physicians must intervene.
"The doctor has a legal duty to take reasonable steps to preserve the life and health of the patient," Mehlman said. "If they don’t, in the most egregious situations, this has led to criminal prosecutions."
Anti-abortion laws complicate this legal guidance, Mehlman said. Even with an exception for the life and health of the woman, they create a legal hazard for hospitals and doctors. Under liability law, providers should intervene. Under a state’s abortion statute, they could face criminal sanctions.
"The doctor is between a rock and a hard place," Mehlman said.
The bill Kelly supported would did not have changed how current laws would apply to abortions in the final weeks of pregnancy. But it would have prohibited states from criminalizing abortions.
Abortion opponents say that under the Women’s Health Protection Act, the definition of "the patient's life or health" is vague.
Collett at the University of St. Thomas said past court rulings on abortion show how broadly those terms could apply.
"The health exception, without any statutory qualification, includes psychological health and other non-physical aspects including age and familial status," Collett said. "Such a broad interpretation is probable given the rules of interpretation contained in the Women’s Health Protection Act."
In theory, the bill could allow an abortion that is not strictly because of physical health. The question is, do such cases exist?
We did not find data on abortions taking place very late in pregnancy in the absence of a physical, medical crisis.
We asked Collett whether she knew of an instance when a non-health issue has led to an abortion so late in pregnancy. She said she did not.
We asked the National Right to Life Committee for the same information. They pointed to testimony in the mid-1990s from a doctor who performed abortions. The doctor said pregnancies after 26 weeks were "interrupted because of maternal risk, rape, incest, psychiatric or pediatric indications." The last term applied to teenage pregnancies.
The committee’s press office said that reasons such as psychiatric and teenage pregnancies are evidence that a broad definition of health would apply to the Women’s Health Protection Act.
But when we asked for an example of an abortion taking place in the final weeks for anything other than a clear medical crisis, the committee provided none. Masters’ claim presented a legal conundrum for which there’s no evidence.
Additionally, the testimony from the mid-1990s covered a different time span than the final weeks of pregnancy that Masters spoke about.
Masters said that Kelly voted to "legalize abortion up until the moment of birth."
Kelly voted for the Women’s Health Protection Act, which would have prohibited states from banning abortion of a viable fetus when the life and health of the woman are at risk. It also would have prevented the criminalization of abortions.
Abortion in the last weeks of pregnancy are exceedingly rare. Abortion opponents we reached cited no example where abortions ocurred so late without a clear medical reason. Also, state civil liability laws — in place to ensure medical providers give patients the best treatment possible — already permit abortions in certain medical circumstances. The bill Kelly supported did not change that.
We rate this claim Mostly False.
C-SPAN, Speakers at Trump Prescott AZ Rally, July 22, 2022
Mark Kelly, Sen. Kelly Votes to Advance Women’s Health Protection Act, May 11, 2022
Texas Department of Health and Human Services, Induced Terminations of Pregnancy statistics, accessed July 27, 2022
Centers for Disease Control and Prevention, "Abortion Surveillance — United States, 2019 Surveillance Summaries," Nov. 26, 2021
National Right to Life Committee, Partial-Birth Abortions: A Closer Look, Sept. 11, 1996
Centers for Medicare and Medicaid Services, Emergency Medical Treatment & Labor Act, Dec. 1, 2021
U.S, Congress, Women’s Health Protection Act, Feb. 28, 2022
U.S. Conference of Catholic Bishops, The Women’s Health Protection Act, September 2021
Texas Attorney General’s Office, Paxton Sues Biden Admin Over Its Efforts to Force Abortions in Texas, July 14, 2022
American Journal of Obstetrics and Gynecology, Maternal morbidity and fetal outcomes among pregnant women at 22 weeks’ gestation or less with complications in 2 Texas hospitals after legislation on abortion, July 2022
U.S. Department of Health and Human Services, Letter to health care providers, July 11, 2022
U.S. Supreme Court, Gonzales v. Carhart, April 18, 2007
PolitiFact, Fact-checking Pence’s claim on Democrats and abortion ‘up to the moment of birth’, Oct. 9, 2020
PolitiFact, Anti-abortion group exaggerates how states regulate late-term abortions, June 12, 2022
Associated Press, Posts misrepresent details of US Senate vote to codify Roe, May 16, 2022
New York Times, Women Face Risks as Doctors Struggle With Medical Exceptions on Abortion, July 20, 2022
Interview, Leila Abolfazli, director of reproductive rights, National Women’s Law Center, July 28, 2022
Interview, Maxwell Mehlman, professor of law, Case Western Reserve University School of Law, July 27, 2022
Email exchange, Laura Echevarria, director of communications, National Right to Life Committee, July 27, 2022
Email exchange, Katie Miller, campaign adviser, Blake Masters for Senate, July 26, 2022
Email exchange, Teresa Collett, professor of law, University of St. Thomas School of Law, July 27, 2022
Email exchange, Nisha Verma, fellow, American College of Obstetrics and Gynecology, July 28, 2022
Email exchange, David Cohen, professor of law, Drexel University School of Law, July 29, 2022
Email exchange, Khiara Bridges, University of California, Berkeley School of Law, July 26, 2022
Interview, Autumn Katz, U.S. litigation managing senior counsel, Center for Reproductive Rights, July 28, 2022
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