Pain-Capable Abortion Ban Snags

Exception Embroils Bill in Controversy

WASHINGTON — A ban on abortion of unborn children more than 20 weeks old has stumbled in the GOP-controlled House of Representatives over language that creates an exception for cases of rape — but only ones reported to authorities.

Republicans were expected to have little difficulty in passing the Pain-Capable Unborn Child Protection Act on the day of the March for Life, which would have dovetailed with the theme of the march, “Every Life Is Precious.”

The pain-capable bill, H.R. 36, would ban late-term abortions performed after 20-weeks’ gestation on the basis that an unborn child can feel pain at that point, but with two exceptions to the ban: when the life of the mother is endangered and in cases of rape, and of incest, involving minors that have been reported to the authorities.

A group of Republican women, led by Reps. Renee Ellmers, R-N.C., and Jackie Walorski, R-Ind., objected to the reporting language in the rape exception days before the scheduled vote. GOP leaders then pulled the bill and substituted H.R. 7, the No Taxpayer Funding of Abortion Act.

That bill passed the House (242-179) on the day of the march, but the withdrawal of the pain-capable abortion ban came as a shock to pro-life leaders.

National Right to Life Committee’s president, Carol Tobias, said in a statement that, while her group was “profoundly disappointed” the bill was delayed, they preferred delaying the bill over passing “a greatly weakened bill.”


Unpleasant Surprise

Tobias noted that the bill enjoyed broad popular support — in fact, a November Quinnipiac poll showed 60% of Americans supported the 20-week abortion ban with its reporting requirements — and she sent a not-so-veiled message that Ellmers and her colleagues in the House of Representatives could face repercussions.

“Some of these lawmakers may ultimately conclude that they were ill-advised to sacrifice the trust of their pro-life constituents so egregiously,” she said.

NRLC pointed out Ellmers had voted back in 2013 for the bill’s language that she was now objecting to in 2015.

In an interview with National Journal, Ellmers explained that she wanted GOP leaders to reconsider bringing up the bill so soon.

“We got into trouble last year, and I think we need to be careful again; we need to be smart about how we’re moving forward,” she said. “The first vote we take, or the second vote, or the fifth vote, shouldn’t be on an issue where we know that Millennials [won’t support the GOP] — social issues just aren’t as important [to them].”

Charmaine Yoest, president of Americans United for Life, said the pain-capable bill is “still in play,” but there are ongoing conversations about how to best proceed. Part of the issue, she said, is the ongoing conversation about rape in the U.S. that was sparked by allegations of a rape culture on college campuses.

“The pro-life women were really concerned that we just had that nailed down,” she said. “Part of the reason people were surprised is that this exact same bill passed last year, but the cultural conversation around rape has really escalated over the last three months. That was the source of the problem.”

Most women do not report rape, according to the U.S. Justice Department. The Bureau of Justice Statistics found that 63% of rapes, 65% of attempted rapes and 74% of “completed and attempted sexual assaults” against women went unreported to authorities during the period between 1992 and 2000.


The Bill’s Future

Whatever happens next to the bill depends on what compromise the Republican leadership can work out to get the legislation once more before the House.

Rep. Dan Lipinski, D-Ill., and co-chairman of the House’s bipartisan Pro-Life Caucus with Rep. Chris Smith, R-N.J., said he believed the rape-reporting requirement will be dropped if it is brought up again.

“That’s what has caused problems with the bill, and there is the understanding that, when it goes to the Senate, it was going to be taken out anyway,” he said. “That’s what I’m hearing.”

Lipinski added that the GOP’s leadership has had problems among its own caucus in bringing up other pieces of legislation, not just the pain-capable bill.

“I think it is going to take a push [from pro-life Americans] to make sure it is brought back up,” he said.

Smith told the Register that “discussions are ongoing” with pro-life organizations and members of the caucus, particularly those members concerned about the language.

“We want to be unified, and we want a really strong piece of legislation that will save lives,” he said.

Smith added that the GOP leadership is “totally committed to protecting life” and expected the bill would be brought up again soon.

Kristen Day, executive director of Democrats for Life of America, said the last-minute scuttling of the pain-capable bill “out of nowhere” illustrated the need for the pro-life movement to diversify beyond the Republican Party.

“What we’ve seen is that not having pro-life Democrats in Congress is maybe not a good thing for the pro-life movement,” she said, “when you have people like Jackie Walorski pulling this bill and saying they are not going to vote for it over political reasons, because they thought it would hurt their chances to get Millennials to go out and vote Republican.”

Day said the movement needs to invest in pro-life Democrat alternatives — and helping them beat their pro-abortion competitors at the primary level — much as in the same way the National Right to Life Committee invested in Republican candidates to build a pro-life majority in that party. She pointed to the National Rifle Association’s strategy of putting its heft behind both Democrat and Republican candidates, so that no matter how the balance of power shifted, the NRA still had a bipartisan majority in Congress embracing its agenda.

“We really need to think long and hard, because if this is the direction we’re going, where all the decisions are made for political reasons, we’re not going to be successful as a movement,” she said.

Others in the pro-life movement, meanwhile, have argued the situation-based exemptions undermined the justice of the fetal-pain abortion ban when they were introduced back in 2013.


Unborn Victims of Rape

“There’s a difference between supporting abortion regulations and discrimination against a whole class of persons,” Rebecca Kiessling, a pro-life attorney and speaker conceived in rape and nearly aborted herself, told Cardinal Timothy Dolan, speaking as a guest on his Sirius XM Catholic Channel radio program on the eve of the March for Life.

“This is America, where we do not punish innocent people for someone else’s crime,” she said, pointing out that the U.S. Supreme Court itself ruled out the death penalty for rapists and child molesters. “A politician should say that ‘I don’t believe an innocent child deserves the death penalty for [the rapist’s] crime.’”

Kiessling said her own experience belies the notion that rape exceptions are essential to moving pro-life legislation forward.

“When I’ve testified before legislators, they didn’t think they had enough votes to get [a no-exceptions bill] out of committee, but not only did the rape-exception legislators change their minds, they also had pro-choice legislators vote for a 100% pro-life measure, abortion bans in fact.”