Despite all the political posturing and attacks on clinics, many people appreciate that the decision to end a pregnancy is generally nuanced and thought through. While many – or even most – Americans do support some level of restriction on abortion, more than four-fifths believe that a total ban would be taking it too far.
One of the most common justifications for that view was presented to Texas governor Greg Abbott last week as he was defending the state’s controversial new anti-abortion law. “Why force a rape or incest victim to carry a pregnancy to term?” a journalist asked the Republican lawmaker.
Under the so-called “heartbeat bill”, Texas healthcare providers are banned from performing abortions after six weeks of pregnancy – the point at which proponents of the law say a fetus’s heartbeat can be detected. Despite this being a misrepresentation of medical facts, the new law allows any random citizen to bring legal action against a person they suspect of helping someone obtain an abortion. That means healthcare providers, but it can even include people like cab drivers who transport somebody to an abortion, or friends providing financial support for the procedure. There are no exceptions to the ban – not even for pregnancies resulting from rape or incest.
“It doesn't require that at all,” Abbott answered, “because obviously, it provides at least six weeks for a person to be able to get an abortion.”
On the face of it, that might seem reasonable – so why are so many people saying this “heartbeat bill” is tantamount to a full ban on abortion? Let’s take a look at what Senate Bill 8, to give it its formal name, means for people who want an abortion in Texas – and how long they’ve really been left to get one.
Best case scenario: about 10 days
There’s a fair chance you’ve already seen the explanation that “six weeks pregnant” is actually just two weeks after a missed period. That’s correct, but it’s not the whole story.
See, a fun quirk of obstetrics (the medical field concerned with pregnancy and childbirth) is that a pregnancy “begins” on the first day of your last period, not from conception. There’s a good reason for this: it’s extremely difficult to know precisely when sperm met egg – even if you’ve only had sex once there’s more leeway there than you might think – but it’s generally pretty obvious what day your period turns up. The Texas bill has taken this definition as its basis as well: it states that “pregnancy is calculated from the first day of the woman’s last menstrual period.”
Of course, if you remember anything from health class, you can probably spot the problem here: ovulation occurs about two weeks before the end of a menstrual cycle – not when your period arrives.
“If you really think about it, you realize you’re not really pregnant for the first two weeks of pregnancy,” explains OB/GYN Marta Perez, assistant professor of Obstetrics & Gynecology at Washington University School of Medicine. “And you don’t get a positive pregnancy test until at least week four at the earliest.”
So that’s where the two weeks figure comes from: at “six weeks pregnant” when you officially run out of time to get an abortion, it’ll actually be just two weeks since you theoretically should have started your period. Even if you take a pregnancy test immediately, rather than waiting a few days like most people would, Texas law then requires you to have an ultrasound 24 hours before an abortion – and then again before the procedure itself – to check for the “fetal heartbeat” that gives the bill its name.
“So, that further compresses this timeline because now you have to have two visits,” said John Thoppil, president of the Texas Association of Obstetricians and Gynecologists. “There have been cases […] where somebody went in and [in] the next 24 hours cardiac activity progressed and they were unable to proceed.”
And here’s the thing: this is the best-case scenario. If you have a perfect, unfailingly regular 28-day menstrual cycle and take a pregnancy test the second your period becomes officially late, you get a window of around 10-12 days to get an abortion. You then have to find and reach a clinic in that time – there are less than 20 providers in the state, and the closest may be hundreds of miles away from you.
Real life scenario: about three days
In the real world though, things aren’t so simple. Even though we’re taught that a menstrual cycle is 28 days long, the truth is that only applies to a minority of people. In 2019, a study analyzed the cycles of over 600,000 women and found that only 13 percent of people have the “classic” four-weekly pattern.
“It is a common belief that ovulation occurs on day 14 of the cycle,” the authors wrote. “For the majority of women in the real-world […] this is not the case.”
In fact, not only does cycle length generally decrease with age, but you shouldn’t expect it to hit 28 days until you’re in your late 30s – before that, it’ll probably be a day or two longer.
Another thing that decreases as you age – at least, initially – is how much your cycle length can vary month-to-month. That’s right: even the most regular of menstruators can only really predict their next period within a couple of days, according to the study. For those at the beginning or end of their childbearing years, cycles could vary by more than three days.
“I’ve had patients come to me worried and anxious about their menstrual cycles because they think their cycles are irregular when they really aren’t,” explained reproductive endocrinologist Aimee Eyvazzadeh. “It’s quite normal to have a cycle that is, for example, 27 days one cycle and 30 days the next.”
So if you’ve found yourself wondering recently about who could possibly not realize they’ve skipped a period, consider this: the average cycle of a 19-year-old can easily be as high as 31 days long, and vary by three days or so each month. That puts them at five weeks pregnant before they might even suspect that they had missed a period – and gives them just three or four days to secure an abortion.
Worst case scenarios: you're out of time
A three- or four-day window doesn’t leave much room for error – which is a problem, because there are a number of factors that can throw your cycle even further out of whack. You might have started a new diet or exercise regimen, or be feeling particularly stressed lately. You might be on birth control, and not expecting a period at all. In especially ironic cases, you might even have mistaken a common early pregnancy symptom for your monthly bleed.
And for some people, that’s just the beginning. There are millions for whom late, irregular, or completely missing periods are just a normal part of life – people with conditions like hypothyroidism, for example, which can set off a cascade of hormonal imbalances and leave your cycles severely screwy.
Another condition that can seriously mess with your cycle regularity is PCOS, or polycystic ovary syndrome. It’s surprisingly common too, affecting up to 10 percent of women in the US, and it can have such an extreme effect on cycle length that doctors will often need to resort to an early ultrasound scan to date a pregnancy.
“It’s basically a dysregulation of the endocrine system,” explains Dr Danielle Jones, OB/GYN. “[In people without PCOS] you basically see the brain making hormones, they go to the ovary, the ovary responds, and that sends more hormones back up to the brain, that makes you have a cycle and start a period.”
However, for somebody with PCOS, these hormones “kind of get lost,” she says. The ovaries don’t get the signal to start ovulation and instead are stuck making more and more follicles.
“They do ovulate,” she says, “it’s just not usually at a 28-to-35-day cycle.”
In fact, a person with PCOS may well go months at a time without having a period. To make things worse, people with the condition are often erroneously told they’re infertile, meaning they won’t be on the lookout for other tell-tale signs of pregnancy. This, along with unpredictable hormone levels, means that people with PCOS often don’t know they’re pregnant for many weeks – in extreme cases, the syndrome can even be associated with cryptic pregnancies.
There are many reasons somebody might not know they were pregnant at six weeks
So we’ve seen how, under perfect circumstances, a person might have a bit less than two weeks to get an abortion under Texas law. But we’ve also seen how rare those circumstances actually are – which is probably why at least 85 percent of abortions in the state previously took place after the new six-week cut-off point.
This means that for many people, Texas’s “six-week” abortion ban will effectively rule out the procedure entirely – at least in-state – and Greg Abbott’s suggestion to the contrary shows “No basic understanding of reproductive health,” Melaney Linton, president and CEO of Planned Parenthood Gulf Coast told CNN. Victims of rape and incest, in particular, would have “just days to learn they are pregnant, make a decision, find a provider, get an appointment, and secure the financial and logistical resources,” she said, “all while dealing with the trauma of being assaulted.”
While the ban has faced off a Supreme Court appeal, its next challenge comes from the Justice Department.
“It takes little imagination to discern Texas's goal – to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights,” says the lawsuit.
“The Act is clearly unconstitutional under long-standing Supreme Court precedent […] that ‘regardless of whether exceptions are made for particular circumstances, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’,“ said US Attorney General Merrick Garland said in a press conference last week.