“Watch a sonogram of a 15-week baby, and they have movements that are purposeful,” said Burgess, a former OB/GYN. “They stroke their face. If they’re a male baby, they may have their hand between their legs. If they feel pleasure, why is it so hard to believe that they could feel pain?”
That observation led Burgess to say he had argued for the abortion ban to start at a much earlier stage of gestation, 15 or 16 weeks. (This is less than halfway through a pregnancy.) He appeared to liken Roe v. Wade, the 1973 Supreme Court decision that legalized abortion, to the 1893 Plessy v. Ferguson decision that formally legalized racial segregation, and was not fully reversed until Congress passed the Civil Rights Act of 1964.
The rationale for the Republican bill, which advanced through the House Judiciary last week on a near-total party-line vote, is one scientifically disputed study, touted by Judiciary Committee Chairman Bob Goodlatte (R-VA) in his opening remarks at today’s Rules Committee hearing, that asserts fetuses can feel pain as early as 20 weeks after sperm meets egg.
“Well, I think all the members are cognizant of the fact that this is not a Congress that cares much about science,” said Rep. Louise Slaughter (D-NY), the Rules Committee’s ranking member, in her questioning of Goodlatte, who refuted that claim by saying that since 1973, the year when the Supreme Court legalized abortion, much more had been learned about fetal development.
Major medical bodies in the United States and the United Kingdom have refuted the claim of fetal pain before the third trimester.
The 20-week abortion ban, if passed into law, would set up a direct challenge to Roe v. Wade, which allows abortion up to the point of fetal viability outside the womb, and mandates exceptions for abortions in the case of pregnancies that threaten the life or health of the woman.
When first drafted, the 20-week ban was meant to apply only to the District of Columbia, over which Congress has a great deal of control. But with the arrest and murder conviction of Kermit Gosnell, who ran an illegal abortion clinic in Philadelphia, right-wing forces have sought to use justifiable public revulsion at Gosnell’s actions to further restrict women’s rights—and in contradiction to the common right-wing assertion of state sovereignty.
Former Rep. Marilyn Musgrave, speaking before a right-wing gathering in Washington, DC, last week, put it this way: “This is a time for the pro-life movement like we have not had in decades. We must seize the moment.”
Goodlatte, in his opening statement, framed the ban as a measure to prevent practices such as Gosnell’s, a conflation that Rep. Jerrold Nadler (D-NY) termed “a red herring” which, he said, had nothing to do with the way abortion is practiced in legal clinics.
Rebutting Goodlatte’s pronouncements on the stage of development at which fetuses feel pain, Nadler (D-NY) noted doubts that the study’s own author, Kanwaljeet “Sunny” Anand, MD, had about its assertions, having stated in 2005 testimony that evidence of fetal pain in the second trimester of pregnancy “was uncertain.”
Nadler also took issue with the tepid exception to the ban for women who were pregnant through rape or incest—a measure added last minute after Rep. Trent Franks, the bill’s sponsor, said at last week’s Judiciary Committee hearing that the incidence of pregnancy from rape is low. With the 2014 midterm elections looming, GOP leaders scrambled to avoid the kind of fallout encountered in 2012 when Republican senatorial candidates Todd Akin (MO) and Richard Mourdock (IN) saw their campaigns tank after making comments about rape, pregnancy, and abortion.
The exception applies only to women who “first reported the rape or the incest to the authorities,” Nadler said, and, in the case of incest, the exception applied only to minors, even if an adult woman had been abused by the relative who had impregnated her since she was a child.
“It would be great if every rape or assault would be reported,” Nadler said, but the Republicans’ last-minute amendment—made after Republicans in the Judiciary Committee rejected a rape-and-incest exception offered by the Democrats—made no allowance for the toll often taken on rape victims in the judicial system, he said, including sometimes facing death threats from the friends and neighbors of the perpetrator.
“So, the authors of this bill apparently believe that women are too dishonest to be believed when they say they were raped or the victims of incest,” Nadler said. “It is Congress siding with her abuser…”.
There is also no protection for the health of the woman in the bill, nor an exception allowing for saving the life of the woman, except in terms defined so narrowly, Nadler continued, as to be virtually useless.
Democrats have been quick to note, as Slaughter did in the Rules Committee hearing, that the Republicans who voted the bill to the floor in the House Judiciary Committee were all men, due to the fact that the GOP hasn’t appointed a single woman to one of Congress’ most important committees.
So, when the 20-week abortion ban bill—deceptively titled the “Pain-Capable Infant Protection Act” —comes to the floor of the House of Representatives on Wednesday, you won’t find Trent Franks managing the floor debate. Instead, GOP leaders have tapped the ardently anti-choice Rep. Marsha Blackburn (R-TN) to lead that charge.
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