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The Forces that Stopped the Protection of the Unborn Who Feel Pain

baby abortion – en

© SHUTTERSTOCK.com

Mark Stricherz - published on 03/16/15

Learn what halted this crucial legislation

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WASHINGTON — It had been a rotten 24 hours. On the eve of the March for Life, female Republican lawmakers protested a clause in an ambitious pro-life bill that addressed reporting requirements for rape. After they failed to reach a compromise, House Republican leaders yanked the legislation from the floor. On the day of the march, activists read the news and stormed over to the office of one representative to confront her for helping to kill the bill. “Coward!” Kristan Hawkins, president of Students for Life of America, yelled in the hallway outside the office of Rep. Renee Ellmers, R-N.C.

As the sun fell in the chilly January sky, a young GOP staffer walked from the twin doors on the southeastern wing of the Longworth House Office Building to head home for the day. Although the aide was not privy to the negotiations, he knew the players and his boss spoke at a caucus meeting in which the bill was discussed. The aide shook his head in disbelief at pro-lifers’ crack-up. We’ll do a better job of coordinating next time, he vowed.

In a follow-up interview, the aide criticized House leaders, pro-life officials, and female Republican lawmakers. "People were not talking with each other. No one spent a lot of time looking for problems in advance. What did in fact happen was an eruption or a rebellion, and if people had spoken to the right people in advance,” the aide said, his voice trailing off. “That’s all I will tell you.”

Days later, pundits speculated on and reporters described the reasons for the bill’s temporary defeat. “The idea that GOP is a party of moneyed interests posing as a culturally conservative party is, um, not always without empirical support,” Ross Douthat of The New York Times tweeted. “It’s a dicey moment for congressional Republicans’ relationship with the activists who represent their most reliable source of grassroots support,” reporter Joel Gehrke concluded in a heavily-reported story that suggested female GOP lawmakers deserved most of the blame for the bill’s defeat.

But a closer look at the polls and interviews with House aides, lawmakers, and pro-life leaders shows that the bill fell prey to a more common political foe: a lack of coordination. The politicians misunderstood the legislation, while the activists may have misunderstood the politics. Pro-life leaders may have overestimated the popularity of their legislation and failed to appreciate that some Republican lawmakers saw the legislation as a tough vote and resented the influence of conservative pressure groups. GOP House members failed to grasp that the bill’s reporting requirements for rape were similar to those in the so-called Hyde Amendment, which has guided federal funding of abortion for nearly four decades.  

Today, the Pain-Capable Unborn Child Protection Act sits in legislative limbo. House Republican leaders have promised to hold a vote on the bill but have not set a date. "It has not been defeated. We’re working very hard to bring it up for a vote, and we expect to do so soon," Rep. Bob Goodlatte of Virginia, chairman of the House Judiciary Committee, said in an interview last month.

Marjorie Dannenfelser, president of the Susan B. Anthony List, gave a more cautious estimate. "I’m giving it at least a few more weeks. I hope something happens soon. We’re running out of time," Dannenfelser said in an interview February 27.

The legislation would ban abortion after 20 weeks of gestation except in limited circumstances. Pro-life leaders cited medical studies showing that unborn children at 20 weeks can feel pain, although pro-choice leaders quoted medical associations to the contrary.

Roughly 1.5 percent of abortions are performed after the 20th week. Although several media outlets cited this figure, they failed to note that more than 1 million abortions are done every year in the United States. The Susan B. Anthony List said if the bill became law, it could prevent the deaths of 18,000 unborn children annually.

Among Republicans, the bill enjoyed nearly universal support. In 2013, the House of Representatives voted on a nearly identical piece of legislation. Of the 228 House Republicans who cast a vote on the bill in 2013, 222 voted for it. After Republicans crushed Democrats in the 2014 mid-term elections, incoming Senate Majority Leader Mitch McConnell promised a vote on the legislation in the new Congress.

The public, too, seemed to support a ban on abortion after 20 weeks. Both the National Right to Life Committee and the Susan B. Anthony List cite polls that show three-fifths to two-thirds of Americans backed a bill to prohibit later-term abortions.

Pro-life leaders went out of their way to show common cause with female Republican lawmakers. The Susan B. Anthony List released a 28-page business plan for 2014. On page 9, the organization published a feature about the House’s approval of the bill. “Political results mean policy victories,” the group said. The feature included pictures of seven female lawmakers speaking on the House floor in support of the bill, including Ellmers, Jackie Walorski of Indiana, and Kristi Noem of South Dakota. The group vowed to raise $25,000 for Walorski’s re-election race.

For House Republican leaders, rank-and-file members shared the same interests as pro-life activists. GOP leaders scheduled a vote on the pain-capable legislation on January 22, the date of the annual March for Life, which draws hundreds of thousands to Washington, D.C., to commemorate the anniversary of the Supreme Court’s 1973 Roe v. Wade and Doe v. Boltonrulings that struck down all state bans on abortion. 

But the passage of the bill masked uneasiness among some GOP lawmakers about the rape clause.

On April 26, 2013, Rep. Trent Franks, R-Ariz., introduced the legislation without an exception for victims of rape and incest. Why not? “The incidents of rape resulting in pregnancy are very low,” Franks said to a Democratic colleague at a hearing of the House Committee on the Judiciary on June 12. Franks’ words did not convince colleagues on the House Committee on Rules. On June 18, the panel voted to add a narrow clause to page six of the bill: If the rape or incest was reported to authorities before the abortion, the physician could not be fined or sent to jail.

After the hearing, reporters at mainstream outlets pounced on Franks’ comments. “Trent Franks’ abortion claim and the manly Republican Party,” read The Washington Post’s headline of reporter Dana Milbank’s story on the hearing. Milbank and Democrats compared Franks’ comment to those of Todd Akin and Richard Mourdock, who lost two winnable Senate seats in Missouri and Indiana because each candidate had discussed rape and abortion.

House Republican leaders grasped that discussing rape in the context of abortion was bad politics. The previous January, at a House retreat GOP pollster Kellyanne Conway told the caucus that “rape is a four-letter word.” GOP leaders adopted a new strategy: Instead of Franks leading floor debate on the legislation, female Republican lawmakers would.

House Republican leaders’ strategy worked. The bill passed. Yet the legislation did not enjoy bipartisan support. Of the 201 House Democrats who voted on the bill in 2013, only six cast a “yea” vote. The Democratic-controlled Senate did not vote on the legislation at all. And President Obama said he would veto the bill.


The lack of Democratic support suggests that popular support for the bill was overstated. Indeed, a detailed look at the polls suggests a more complex political reality than pro-life activists claimed.

Four polls have examined public opinion about banning abortion after 20 weeks from fertilization. All four showed that more Americans supported a ban than opposed it. Yet the levels of support varied from a high of 60-33 in a Quinnipiac survey to a low of 44-37 in an NBC/Wall Street Journal poll.

And two polls omitted a key part of the bill: a section on the reporting requirements for rape and incest. When Americans were asked if they supported banning abortion "except in cases of rape and incest that will be reported to authorities," two polls reached different conclusions. A Quinnipiac poll found that the public supported the legislation by a 60-to-33 margin. By contrast, a National Journal poll found that support dropped to 48-44.

"I don’t see the poll as a warning sign," Mallory Quigley, spokeswoman for the Susan B. Anthony List, said of the National Journal survey. She noted that a plurality of Americans support a ban on abortion after 20 weeks. But two House Republican aides and one key female lawmaker disagreed.

For them, the differing levels of support meant that the 20-week abortion ban was no slam dunk. One aide close to leadership said even raising the issue of rape in the House Republican caucus is "toxic” because of Akin and Mourdock. “I never want to see those guys again," the aide said.

This aide and another concluded that the 20-week abortion ban bill could be a political split decision: a vote that lawmakers from both parties use to appeal beyond their core supporters to independent voters. "The logic seems obvious," a second aide said. Indeed, last month NARAL Pro-Choice America sent a fundraising appeal to supporters highlighting the provision on reporting rules for rape and incest in the bill.

An Aleteia reporter asked one veteran pro-life leader about the fears of female Republican lawmakers. This leader suggested the pols misunderstood the politics of the issue: the lawmakers equated statements from pro-choice feminists as representative of public opinion.

The activists’ remark betrayed a lack of appreciation for the female lawmakers, one House GOP aide who is close to leadership said. 

This aide noted the women wanted to put their foot down: They feared the pain-capable bill might reprise the damaging rows between pragmatist and tea-party conservatives in the caucus in 2013 which resulted in a partial government shutdown that October. According to the aide, the women saw themselves as pragmatic conservatives. After House Republican leaders regained the upper hand over tea-party conservatives in mid-2014, the women did not want to relinquish their power. True, the House passed the pain-capable bill in 2013, but in the new Congress the bill did not go through “regular order” in which a committee examines and votes on the legislation. Did the lawmakers really know what was in the bill and all of the possible implications?

Media reports have said Representatives Ellmers, Walorski, Noem, and Marsha Blackburn of Tennessee rebelled against the reporting requirements in the bill. Spokespersons for Ellmers and Walorski did not return multiple emails and phone calls for comment, while a spokesman for Blackburn did not return a second phone call.

For pro-life leaders, the female lawmakers did not play fair. As Quigley noted, female lawmakers gave shifting explanations for their opposition to voting on the bill in the new Congress.


For example, Ellmers gave different explanations to reporters. In mid-January, she said young voters were indifferent to pro-life legislation. "The first vote we take, or the second vote, or the fifth vote, shouldn’t be on an issue where we know that millennials—social issues just aren’t as important [to them]," Ellmers told National Journal. On January 22, Ellmers said she wanted to drop the rape-reporting requirement altogether. “When we come off as harsh and judgmental, we stop that conversation and we’ve got to learn to be doing a better job,” she told the Washington Examiner.

In addition to shifting their explanations, some House Republicans misrepresented the substance of the legislation. Several members made statements that were ignorant about the reporting requirements for rape in the pain-capable bill. “When you start getting into telling a woman that she has to report she was raped to be able to qualify, that takes it in a direction that makes me very uncomfortable,” commented Rep. Tom Rooney, R-Fla.

In fact, under the legislation a victim is not required to report being raped. Another person could report the rape. In section three of the bill, the legislation allows an exception for abortion “if the rape has been reported at any time prior to the abortion to an appropriate law enforcement agency.” The passive language was intentional, according to Joseph A. Califano, Jr., the author of the reporting requirements for rape in the Hyde Amendment. “I changed the regulations to require that the names and addresses of both the victims and the person reporting the rape or incest, and the dates of both the report and the incident be included in the documentation for Medicaid funding,” Califano, the secretary of the Department of Health, Education, and Welfare, wrote in Governing America: An Insider’s Report from the White House and the Cabinet.

Ellmers, too, showed a naivete about the substance of legislation. She said she was both pro-life and supported no reporting requirement for rape. Yet eliminating the requirement would invite abuse. In Governing America, Califano wrote that President Carter himself feared that unless the Hyde amendment contained a strict reporting requirement for rape and incest, physicians who performed abortions and abortion facilities would exploit the loophole. “I want rules that will prevent abortion mills from simply filling out forms and encouraging women to lie,” Carter told Califano. Both Califano and President Carter declined interview requests.

In addition, congressional Republicans showed ignorance of the rules of the Hyde amendment.

One influential Senate Republican acknowledged he did not know about reporting requirements for rape that the public would support. “We need to find a consensus position on the rape exception," Sen. Lindsey Graham of South Carolina, the sponsor of the Senate bill, said at an event at the Family Research Council on January 22. "The rape exception will be part of the bill. We just need to find a way definitionally to not get us into a spot where we’re debating what legitimate is.”

If longevity is an indication, the Hyde Amendment’s reporting requirement on rape is popular. It has endured for nearly four decades. The Hyde requirement is slightly more liberal than the pain-capable’s requirement, as the rape can be reported not only to law enforcement but also to a health agency. But dropping the requirement in the pain-capable bill and substituting the requirement of the Hyde amendment would re-affirm current law rather than overturn precedent.

Publicly, most Republican lawmakers and pro-life leaders won’t discuss if they are negotiating or exchanging legislative proposals. “We’re open to anything. But personally, I wish there was no exception,” Dannenfelser said.

Mark Stricherz, the author ofWhy the Democrats are Blue: Secular Liberalism and the Decline of the People’s Party (Encounter Books, 2007), is the Washington correspondent for Aleteia.

The original version of the story reported that the House Committee on the Judiciary addded the rape-and-incest clause to the legislation. In fact, the House Committee on Rules added the language on June 17. The author regrets the error.

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