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The Facts —
- The US House of Representatives will vote on the Pain-Capable Unborn Child Protection Act (PUCPA or PCUCPA) on 3 October, House Majority Leader Kevin McCarthy (California) said on 26 September.
- The bill, if passed in its current form by the House and Senate and signed into law by President Donald Trump, would:
- Criminalize the attempt to perform or the performance of an abortion after 20 weeks of pregnancy.
- Mandate that those found guilty of performing abortions be fined, imprisoned for up to five years, or both.
- “(c) Criminal Penalty.—Whoever violates subsection (a) shall be fined under this title or imprisoned for not more than 5 years, or both.”
- The bill includes exceptions for births resulting from rape or incest, as well as abortions performed to save the life of the woman.
- The bill would not penalize women for seeking abortions after 20 weeks, only the doctors who perform those abortions.
- “(d) Bar To Prosecution.—A woman upon whom an abortion in violation of subsection (a) is performed or attempted may not be prosecuted under, or for a conspiracy to violate, subsection (a), or for an offense under section 2, 3, or 4 of this title based on such a violation.”
The Bill’s Path to Becoming Law —
- President Trump said he would sign PUCPA into law if it passed in Congress, according to The Hill.
- Thomas Carsey, Pearsall Distinguished Professor of Political Science at the University of North Carolina at Chapel Hill, told The Whim that while the bill may pass in the House, it is not likely to pass in the Senate.
- David Cruz, Professor of Law at the University of Southern California School of Law told The Whim that this bill is likely not constitutional, as Roe v Wade settled in 1973 that “the Constitution protects a woman’s right to terminate a pregnancy prior to a fetus’s viability,” which “generally does not occur as early as 20 weeks.”
- Randy Beck, Chair of Constitutional Law at the University of Georgia, argued in a 2013 article in Georgia Law that “The Court has never offered an adequate constitutional justification for the viability rule, a line that produces arbitrary and irrational results, pushes US law outside the international mainstream, and prevents the development of a stable political consensus on abortion regulation. It remains to be seen what Justice Kennedy will do if a future case requires the Court to squarely address the duration of abortion rights.”
The Context —
- The premise behind PUCPA is that a fetus in the womb can feel pain at 20 weeks, according to proponents of the bill.
- National Right to Life Committee’s state policy director Mary Spaulding Balch “pioneered fetal-pain laws,” according to The New York Times in 2016, based on the belief that a fetus feels pain at 20 weeks.
- Balch cited doctors’ use of anesthesia on fetuses during performance of abortions as proof that a fetus can feel pain, she told The New York Times in 2016:
“If the child who is waiting for surgery can feel pain, the child who is waiting for abortion can also feel pain.”
- Some doctors disagree with the idea that fetuses can feel pain at 20 weeks, like former president of the International Fetal Medicine and Surgery Society Dr. Nicholas Fisk, who told The New York Times in 2016 that Neurological research had convinced him that pain “is not possible at all” before 24 weeks of gestation.
- In 2009, around 1% of reported abortions were performed at 21 weeks or later, according to the Centers for Disease Control and Prevention (CDC). Additionally:
- “In 2009, most (64%) abortions were performed at or earlier than 8 weeks’ gestation, and 91.7% were performed at or earlier than 13 weeks’ gestation. Few abortions (7%) were performed at 14–20 weeks’ gestation, and even fewer (1.3%) were performed at or later than 21 weeks’ gestation.
- “From 2000 to 2009, the percentage of all abortions performed at or earlier than 8 weeks’ gestation increased 12%, whereas the percentage performed at or later than 13 weeks’ decreased 12%. Moreover, among abortions performed at or earlier than 13 weeks’ gestation, the distribution shifted toward earlier gestational ages, with the percentage of these abortions performed at or earlier than 6 weeks’ gestation increasing 47%.”
- Currently, 20 states have passed their own 20-week abortion bans, according to The Washington Times, The Hill, and Rewire.
- Those states are Alabama, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin.
- Three states previously passed similar legislation, but have had their 20-week abortion bans blocked, according to Rewire.
- Those states are Arizona, Georgia, and Idaho.
Is a 20-Week Abortion Ban Constitutional?
- Professor David Cruz also told The Whim that this bill is likely not constitutional because:
“My immediate reaction is that the PUCPA (or PCUCPA) is unconstitutional under longstanding Supreme Court case law. Since Roe v Wade in 1973, the Supreme Court has held that the Constitution protects a woman’s right to terminate a pregnancy prior to a fetus’s viability (ie, ability to survive outside the woman’s body). Viability generally does not occur as early as 20 weeks, so this bill would be criminalizing constitutionally protected activity…
The fact that it appeals to prevention of pain as the justification does not change the outcome under current law. The Supreme Court has said that no justification can allow the government to deprive a woman of the right to terminate a pregnancy prior to fetal viability; it’s hard to imagine that the Court would treat prevention of supposed pain as more compelling than protection of what the Court termed the potential human life…
There are lawyers working for the House that must well know this [bill is likely not constitutional], and so it is difficult to view this bill as anything other than a vehicle to offer the Supreme Court an opportunity to revisit constitutional reproductive rights and overrule its own decisions once enough Justices have been replaced by Trump. Since Scalia rejected the Court’s constitutional understanding of abortion rights, his replacement by Gorsuch is not enough by itself to tip the balance on the Court.”
- Thomas Messner, Senior Fellow in Legal Policy at the Charlotte Lozier Institute, argued in a 2015 white paper titled “The Constitutional Viability of Five-Month Abortion Laws”:
“Five-month abortion laws restrict abortion at 20 weeks of pregnancy—when an unborn child can feel pain from abortion. Opponents of five-month abortion laws argue they violate the ‘viability rule’ created by the US Supreme Court. The viability rule provides that government ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’ In most cases viability will occur after 20 weeks of pregnancy. However, the viability rule is unworkable, arbitrary, unjust, poorly reasoned, inadequate, and extreme. The viability rule cannot be justified, especially as applied to five-month laws. In a challenge to a five-month law it is reasonable to conclude that the Court might abandon the viability rule altogether or not apply it to five-month laws…
In 2013 the US Court of Appeals for the Ninth Circuit ruled that a State five-month law was unconstitutional because it violated the viability rule. The US Supreme Court chose not to review that decision.
However, there are good reasons to conclude that, if the Court considers a five-month law in a future case, the Court might abandon the viability rule altogether or not apply it to five-month laws…
According to Professor [Randy] Beck, ‘scholars from a wide variety of backgrounds have recognized’ that ‘Roe literally provided no argument in favor of treating viability as the controlling line, much less an argument grounded in constitutional principles.’ In Professor Beck’s own analysis, ‘The Court has never offered an adequate constitutional justification for the viability rule.’ …
Nor can the Court assert, as the joint opinion in Casey did in 1992, that Roe’s pronouncement on viability ‘was a reasoned statement, elaborated with great care.’ According to Professor Beck, ‘[t]he Court has never offered an adequate constitutional justification for the viability rule.’ Professor Beck also argues that the Court ‘has never considered the merits of the viability rule based on plenary briefing and argument in a case where it mattered to the outcome.’ …
The viability rule is not the only constitutional issue that might be considered in adopting a five-month abortion policy. And in litigation, the viability rule is not the only constitutional issue that might require adjudication.
However, the viability rule is the core constitutional issue presented by five-month laws… It is reasonable to conclude that, if confronted with the question in a future case, the Court might abandon the viability rule altogether or not apply it to five-month laws.”
Can the PUCPA Bill Pass Both the US House and US Senate?
- Professor Thomas Carsey told The Whim:
“This bill or bills similar to [PUCPA] have been introduced in Congress before, as well as in several states. I think a bill like this could pass in the current House of Representatives, but I think it is much less likely to pass in the US Senate. Unless special rules are applied, it will require 60 votes in the Senate to bring the measure to the floor for a vote. Still, the Republican Party is looking for a legislative victory, so they might press this forward. It would almost certainly be challenged in federal court as unconstitutional, which could eventually lead to the Supreme Court determining whether such a ban is consistent with Roe versus Wade, unconstitutional, or that the Roe versus Wade decision should be overturned…
Even if Republicans knew they did not have 60 votes in the Senate, they still might push the issue in order to force Democrats in the Senate running for reelection next year in states that Donald Trump won to declare their opposition to the abortion ban.”
- The House is currently controlled by Republicans, 240 Republicans to 194 Democrats, with one vacancy.
- Republicans currently hold 52 seats in the Senate and the bill is opposed by most Democrats.
Public Opinion on Abortion Restrictions —
- A 2012 USA Today/Gallup poll found the following:
- According to a 2013 HuffPost/YouGov poll, “By a margin of 59% to 30%, respondents to the new poll said they would favor a federal law banning abortion after 20 weeks of pregnancy.”
Supporters of a 20-Week Abortion Ban —
- Rep. Diane Black (Tennessee) said on 26 September:
“More and more, we can celebrate the ability we have to save the life of a baby at just 20 weeks after conception – that is truly remarkable. As a nurse, I know this first hand.
Science tells us that after 20 weeks of pregnancy, babies are able to feel pain inside the womb. It is unconscionable that this is a debate we are having here in the United States in 2017.
It is far past time to remove the United States from the list of countries allowing late-term abortions. We must pass the Pain Capable Unborn Child Protection Act to right this terrible wrong and give these unborn children a chance to see the light of day.”
- House Majority Leader Kevin McCarthy (California) said in a statement released on 26 September:
“Next week, I’m bringing legislation to the House floor that will respect the sanctity of life and stop needless suffering. The Pain Capable Unborn Child Protection Act will protect the voiceless, the vulnerable, and the marginalized. It will protect those children who science has proven can feel pain, and give them a chance to grow and live full and happy lives. We have an obligation to speak and defend for those who can’t speak for themselves. I welcome every member of the House and the Senate to unite together and say that when children can feel pain, when you can see their noses and ears, when you can hear their heartbeats and feel their movement—at the very least we can all agree these children should be protected.”
- Russell Moore, President of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, said on 26 September:
— Russell Moore (@drmoore) September 26, 2017
- Thomas Messner also argued in the 2015 white paper:
“There is no denying that, in the landmark 1992 case of Planned Parenthood v. Casey, the Court purported to reaffirm the viability rule. The Court stated that ‘no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips.’ Further, a joint opinion in Casey authored by Justice Kennedy and two other justices described Roe as ‘a reasoned statement, elaborated with great care,’ described the viability rule as the ‘most central principle’ of Roe and a ‘rule of law’ and ‘component of liberty’ that ‘we cannot renounce,’ and stated that ‘there is no line other than viability which is more workable.’
However, the Casey Court explained that it was affirming Roe’s central holding with whatever degree of personal reluctance any of us may have.’ Furthermore, the joint opinion authored by Justice Kennedy and two other justices admitted that the issue of viability was ‘not before us in the first instance.’ The joint opinion explained that ‘[w]e do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest [in the protection of potential life] came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions.’ …
In addition, average viability can change, and has changed, with developments in medical technology… Forty years [after Roe], in 2013, a federal district court recognized that ’23 to 24 weeks gestational age is, on average, the attainment of viability.’ …
The viability rule is poorly reasoned and, as demonstrated by now-public archival evidence, self-consciously arbitrary. It fails to command continued adherence.”
Critics of a 20-Week Abortion Ban —
- Eme Crawford, Director of Communications and Learning of the Women’s Rights Empowerment Network (WREN), told The Whim on behalf of WREN (which is located in South Carolina, where a 20-week abortion ban has already passed):
“Not every pregnancy ends the way a family hopes it will. Because each situation is different, we should protect the ability to make our own decisions in consultation with those we trust and without the interference of politicians.”
- James Owens, States Communications Director for NARAL Pro-Choice America and former congressional staffer, told The Whim:
“Make no mistake: with this vote, Republican leaders in Congress are putting fringe agenda into action. Their bill would ban women nationwide from seeking abortion care after 20 weeks of pregnancy, making no allowance for a woman’s individual circumstance, let alone her constitutionally protected right to choose abortion care. Beyond how awful the bill is, it’s also unpopular, with poll after poll showing that some 7 in 10 Americans want to keep abortion legal and accessible. That’s why more than 1 million NARAL members across the country will fight this dangerous bill and hold our elected officials accountable if they stand against American families.”
- The announcement of the House vote on PUCPA coincided with NARAL’s #MenForChoice day of action, prompting Owens to tweet on 26 September:
— James Owens (@JamesDakinOwens) September 26, 2017
- Planned Parenthood echoes NARAL’s statement that 20-week abortion bans are unpopular, and added that they are part of an agenda to ban abortions entirely.
“These bills — and the extreme agenda they are part of — are deeply unpopular with the public. When Americans understand the real-world impact of 20-week bans, a solid 60% of voters oppose them. In fact, 78% of Democrats, 62% of Republicans, and 71% of Independents — say this is the wrong issue for Congress and their state legislators to be spending time on.”
- These assertions by Planned Parenthood are based on a poll conducted by the Hart Research Association.
“The introduction of these bans doesn’t come in isolation. They’re part of a dangerous, out-of-touch, and coordinated effort to chip away at abortion access. Anti-abortion politicians in Congress and state legislatures are pushing their agenda, bit by bit, to ultimately outlaw abortion completely.”
- House Minority Leader Nancy Pelosi (California), said of a similar attempt to pass a PUCPA bill in 2015:
“Republicans should stop wasting time with radical assaults on women’s health, and start spending that energy finding solutions to the manufactured crises they have forced on the American people.”
Full Text of the Bill —
Stephanie Haney contributed to this report.