House Republican leaders abruptly decided to pull an anti-abortion bill, scheduled for a vote Thursday, after a rape-related provision divided the caucus.
The legislation proposed to ban abortion after 20 weeks, a policy that conservatives generally support — and have had great success passing in state houses. But it also contained a controversial rider that would have only exempted rape victims from the ban if they had a police report to prove the assault.
Politico reported Wednesday that GOP leaders pushing the bill — the Pain Capable Unborn Child Protection Act — were exploring changes after some female Republicans pulled their names from sponsorship in protest of the rape provision. Several GOP sources estimated that up to two dozen Republicans might vote against the ban. Ultimately, the defections and caucus dissension proved to be too much and the leadership instead decided to pivot to a bill that would seek to bar taxpayer funding of abortions.
Ten states have passed 20-week abortion bans since Nebraska enacted the first such law in 2010. The bans have generally proved popular with voters, who tend to oppose later-term abortions more than those that happen earlier in the pregnancy. These bans have not contained the rules about rape victims that show up in the House version.
These new laws raise a huge host of thorny issues, ranging from whether fetuses can feel pain at 20 weeks (the case that supporters of the ban make) to whether the laws clearly violate Roe v. Wade, the landmark Supreme Court case that legalized abortion in 1973. Here's a guide to the issue.
What would the House's 20-week ban have done?
The bill would have banned abortions at or after 20 weeks of pregnancy, with some exceptions. An abortion would still be allowed when it was necessary to save a pregnant woman's life or protect her from a "substantial and irreversible" physical impairment. It specifically excluded psychological or emotional conditions.
The bill also permitted abortions at or after 20 weeks when the pregnancy was the result of a rape, or of incest against a minor. But a rape would have to be reported to law enforcement before a woman could obtain an abortion at or after 20 weeks. That's the section spelled out here, in a paragraph of the bill on pages 6 and 7:
Similarly, the incest would have had to be disclosed to police or a government agency that act on reports of child abuse.
If a physician violated the act, the punishment ranges from a fine to up to five years in prison. Women who received abortions banned by the act could not be prosecuted.
A minority of abortions occur in the third trimester, and the Guttmacher Institute estimates this law would disallow 1 percent of all abortions. Nearly 90 percent of all abortions occur in the first 12 weeks of pregnancy.
The ban was likely to disproportionately impact young and poor women, says Heather Boonstra, director of public policy at the Guttmacher Institute.
"When you look at who is in this group, another picture comes to life. Because what you find is those who are obtaining later abortions are more likely to be younger women, low-income women, women of color," says Boonstra. These women are more likely to need to save up money to travel to a clinic and pay for the procedure, she says.
Why did some Republicans object to the legislation?
It's no surprise that major pro-choice groups, such as Planned Parenthood and the National Women's Law Center, opposed the 20-week ban, which they say would curtail access to abortion rights.
The law would have violated Roe, they argue, which guarantees a woman's right to a legal abortion until "viability," the point at which the fetus could survive outside the womb on its own. Most science shows that viability occurs after 25 weeks of pregnancy.
"It's blatantly unconstitutional and it tramples on a woman's fundamental constitutional rights," says Julianna Gonan, director of federal policy and advocacy for the Center for Reproductive Rights. The decision to end a pregnancy should be left to a physician, a woman, and her family, Gonan says.
But what is surprising is the Republican backlash to the legislation, particularly after these laws have garnered easy support at the state level.
Reps. Renee Elmers (R-NC) and Jackie Walorski (R-IN) pulled their names from the bill on Wednesday, Politico reported, after the bill authors refused to change the exemption for rape victims to seek a report from a legal enforcement agency prior to the procedure. Opposition to the bill grew through the course of the day, culminating in House leadership canceling the Thursday vote late on Wednesday evening.
According to Politico, "Ellmers raised the concerns during a closed-door meeting at the GOP retreat" in Pennsylvania last week.
The Justice Department estimates that the majority of rape victims do not report their rapes to law enforcement, meaning this particular clause could be a hurdle to women seeking later term abortions.
Who supports the law?
The supporters of the 20-week ban argue that it's appropriate to override Roe's viability standard, contending that research shows that fetuses can feel pain after that point in the pregnancy.
"The unborn child is so far developed that that child actually feels pain," says Ovide Lamontagne, general counsel for Americans United for Life. Fetal pain is a point of contention between the bill's supporters and opponents. Pam Belluck of the New York Times explains:
"The science of fetal pain is highly complex. Most scientists who have expressed views on the issue have said they believe that if fetuses can feel pain, the neurological wiring is not in place until later, after the time when nearly all abortions occur.
Several scientists have done research that abortion opponents say shows that fetuses can feel pain at 20 weeks after conception. One of those scientists said he believed fetuses could likely feel pain then, but he added that he believed the few abortions performed then could be done in ways to avoid pain. He and two other scientists said they did not think their work or current evidence provided scientific support for fetal-pain laws."
At five months, there is no question that a child is in development, Lamontagne argues. It's the point in time where the interests of the child and the mother merge.
AUL opposes exemptions to abortion bans for the health of the woman, arguing that those would allow too much wiggle room in the law.
"It's essentially an exception that swallows the rule. In other words, for any so-called health reason, psychological, medical, whatever, a woman can justify an abortion through nine months of pregnancy," Lamontagne says.
AUL did not comment specifically on the rape victim exemption.
Is banning abortion at 20 weeks legal?
But the 20-week bans are different: since they kick in before viability, pro-choice groups argue that they violate Roe.
Currently, 10 states have restrictions banning abortion at 20 weeks: Alabama, Arkansas, Indiana, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Oklahoma, and Texas.
Most of the 20-week abortion bans have stood unchallenged in court, with the exception being Arizona's law. Pro-choice groups challenged the state's abortion ban and, in 2013, the Ninth Circuit Court of Appeals found it to be unconstitutional because it violated a long series of Supreme Court rulings, starting with Roe. In January 2014, the Supreme Court denied the state's request for an appeal. Most other 20-week bans, however, haven't been taken up in court and are still being implemented.
What comes next?
It's possible that states will keep passing 20 week bans. Pro-choice groups have generally let most of them stand unchallenged, possibly because they affect a small number of women. And later-term abortion restrictions generally poll more favorably with the public, making them an easier target for legislators looking to regulate the issue.