Analysis Abortion

“It was Worth the Sacrifice:” Kenya’s Dr. John Nyamu on Why He Spent a Year in Prison

Mary Fjerstad

Ipas’s senior clinical advisor Mary Fjerstad interviews Kenya’s much-respected Dr. John Nyamu to discuss the long and difficult path he and so many other Kenyans have traveled to get where they are today on abortion.

Cross-posted with permission from Ipas.

This article was also published in Medical Abortion Matters (November 2012).

Until 2011, abortion was illegal in Kenya except to save a woman’s life. For years the climate of fear and secrecy surrounding abortion hurt women, their families, and health-care providers. Unsafe abortion in Kenya still causes an estimated 30 percent of maternal deaths and countless other injuries.

Now, a newly ratified Kenyan constitution allows for legal abortion on much broader terms—and, when the new law is fully implemented, it stands to dramatically increase women’s ability to exercise their reproductive rights.

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Ipas’s senior clinical advisor Mary Fjerstad recently sat down with Kenya’s much-respected Dr. John Nyamu to discuss the long and difficult path he and so many other Kenyans have traveled to get where they are today.


Mary Fjerstad: Doctor Nyamu, would you tell me what the situation was like in Kenya when abortion was considered a criminal act? [Editor’s note: Before constitutional reform, abortion in Kenya was highly restricted with few legal indications for having the procedure.]

Dr. John Nyamu: Most health-care workers were afraid of talking about it openly. Abortion was never performed in government hospitals unless the life of the woman was in real danger. Even then it was very bureaucratic as one doctor could only do the procedure with permission in writing from two other doctors; one doctor had to be a psychiatrist and the other doctor had to be a senior doctor in the hospital. Abortions were performed by D&C or induction. In reality, these legal abortions were provided almost exclusively at Kenyatta National Hospital, provincial hospitals and very rarely in district hospitals. (Kenyatta National Hospital is the major teaching hospital in Nairobi).

There were wards in hospitals where women who had unsafe abortions were treated for uterine and bowel damage due to perforations and developed sepsis, brain damage and many women died.

There was tremendous secrecy about abortion, women were aborting late. The penalty for a doctor who performed an [illegal] abortion was 14 years [in prison]; pharmacists could be imprisoned for three years for giving abortifacient medicines and women themselves could be imprisoned for seven years for having an abortion.

Some private clinics were providing safe abortion. They were harassed regularly by local police, usually by extortion. They were used virtually as the personal ATMs of the police [ATM = Automatic Teller Machine, a banking machine from which you can withdraw cash using a bank card]. A policeman would say, “I’m short of cash, give me your cash or I’ll arrest you.” The entire staff, including nurses, doctors and women seeking abortion could be arrested. Due to the fear, the providers kept servicing [the police] to buy their freedom.

Your case was profiled by The Center for Reproductive Rights’ paper in 2010, “In Harm’s Way: the Impact of Kenya’s Restrictive Abortion Law.” Can you briefly describe what happened to you that led to this paper?

In 2004, [data were shared] which showed worrying trends and consequences of unsafe abortion in Kenya. This was followed by a major crackdown on clinics, hunts for women who had abortions, some clinics were closed and I was targeted. There were 15 fetuses found along a major road with some documents from a hospital I had worked at previously but had since closed. My clinic was raided and two nurses and I were arrested. This appeared to have been very well organized with all the media including print, radio and TV present to report on the matter.  When we were asked to pay bribes, we refused—because we knew the fetuses were not from our clinic and the documents were planted on the road—and we were locked up. [Editor’s note: subsequent pathology examinations found that the fetuses were still-born fetuses, not aborted fetuses.]

The three of us were ultimately charged with two counts of murder, rather than an abortion-specific offense. Since murder is a non-bailable offense in Kenya, we had to stay in remand prison pending our trial. We all spent a year in prison. One of the nurses was six months pregnant and delivered while she was in prison. One of the nurses still works for me and the other got her green card and has since immigrated to the United States.

A senior doctor, a gynecologist, was instructed by the Director of Medical Services of the Ministry of Health to accompany the police and inspect the two clinics operated by Reproductive Health Services. The purpose of the inspection was to verify if there was any abortifacient equipment. He gave witness in court that the two facilities had legal equipment normally found in a gynecologist’s clinic and he would be surprised if he did not find it as he uses the same equipment for his work. The police forensic department was asked to look for DNA on the equipment from the clinic. DNA was taken from any instruments or equipment with blood on them—even the couches and lab coats were confiscated. The results from the government chemist found that there was no DNA linkage between the fetuses found on the road and any blood specimens from the clinic. The doctor also found that the clinic was duly registered and all staff had proper and up-to-date licenses.

The case was eventually ruled as improper [Editor’s note: They were acquitted of all charges]. With that ruling, the attorney general decided not to pursue prosecution due to lack of evidence.

Was it horrible being in prison for a year?

Yes, it was horrible, but it was worth the sacrifice. I was held at the Kamiti Maximum Prison, which is where the hard-core criminals are remanded. I was confined in a small cell for a whole year. I really felt persecuted, but as I said, it was worth the sacrifice.

Why do you say it was worth the sacrifice?

My arrest and imprisonment was in the media virtually every day. The publicity was an opening for people to realize the magnitude and consequences of unsafe abortion in Kenya; women were dying in great numbers. Before that, abortion was never spoken of in public. There are only about 250 OB/GYNs in Kenya; some districts have none. The media sensation from this case galvanized the Kenya Obstetrical and Gynaecological Society (KOGS), the National Nurses Association of Kenya, the Federation of Women Lawyers, human rights advocates, women’s rights organizations and many others to form an alliance of reproductive health rights advocates.

This alliance exists to date and is known as the Reproductive Health and Rights Alliance (RHRA). The RHRA is an advocacy platform to agitate for the reduction of maternal mortality and morbidity due to unsafe abortion. This alliance also offers technical support to abortion service providers through Reproductive Health Network (RHN). The public became aware of abortion and the toll of unsafe abortion. The window was open to the public to realize the terrible toll of unsafe abortion in Kenya.

This debate extended to the drafting of a new Constitution in 2010. The Constitution says that “every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.”

My arrest, imprisonment and [the resulting] publicity generated a public awareness that led to a transformation in the understanding that safe abortion is essential to preventing maternal morbidity and mortality.

Is there any further action in your own case?

Yes, I have since sued the government for malicious prosecution and subsequent confinement for one year in remand prison. The case has been in court for the last six years without yet being assigned a hearing.

What does the expansive definition of health in the new constitution mean in terms of when an abortion is considered legal?

Abortion is legal if the pregnancy endangers the life of the woman; as an emergency treatment; or when it endangers health, with health defined broadly: physical, social and mental. If in the opinion of a trained health professional an abortion is provided in good faith (in other words, where the pregnancy jeopardizes the woman’s physical, social or mental health), it is legal. [Editor’s note: Under the new law, a woman can make her abortion decision with one health-care provider; others are not required to be involved or sign off on the decision.]

What categories of health-care providers can perform legal abortion?

Physicians, nurses, midwives and clinical officers [who have completed training to perform abortion services] can now perform legal abortions.

What are the next steps in transforming the policies to establish safe, legal abortion in Kenya?

Ipas and other organizations took the lead in writing a document called, “Standards and guidelines for reducing morbidity and mortality from unsafe abortion.” The title is taken from a similar document from Zimbabwe and is brilliant. Kenya, like other countries, wants to achieve the Millennium Development Goal of 75-percent reduction in maternal mortality; this can’t be achieved if safe abortion isn’t available.

The other milestone on transformation is the revision of codes of ethics and scope of practice for all the professional associations in Kenya. These have been done and are waiting to be launched.

This transformation to legal abortion access in Kenya is a testament to very brave, inspired people dedicated to the common good who have sacrificed a lot. How have all the changes we’ve discussed affected providers of safe abortion and women?

Providers are now aware of the enhanced protections that have been offered by the constitution. This in turn has increased access to safe abortion services and thereby enabled women to realize their reproductive health rights. In addition, incidences of provider harassment are now on the decrease.

Analysis Law and Policy

After a Year, What Has the Smear Campaign Against Planned Parenthood Accomplished?

Jessica Mason Pieklo & Imani Gandy

One year after David Daleiden and the Center for Medical Progress released the first of a series of videos targeting Planned Parenthood, there is still no evidence of wrongdoing by the reproductive health-care provider.

See more of our coverage on the anti-choice front group, the Center for Medical Progress here.

One year ago, David Daleiden released the first in a series of videos that he claimed proved Planned Parenthood employees were unlawfully profiting from fetal tissue donation and violating the federal “partial-birth abortion” ban. With the backing and counsel of Operation Rescue President Troy Newman and the help of a woman named Sandra Merritt, among others, Daleiden had created a front group called the Center for Medical Progress (CMP).

He then disguised CMP as a legitimate biomedical research organization—despite overwhelming evidence, including CMP’s own corporate documents, to the contrary—and used it to gain access to abortion clinics and private meetings. The organization released 11 videos by the end of 2015; in a year’s time, Daleiden and CMP had released a total of 14 videos. All have been debunked as deceptively edited and misleading.

So what have those videos truly accomplished? Here’s a summary of the fallout, one year later.

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Lawmakers Mounted Attacks on Planned Parenthood

In response to CMP’s videos, more than a dozen conservative governors launched investigations into or tried to defund Planned Parenthood affiliates in their states. States like Arkansas, Kansas, and Utah had their attempts to defund the reproductive health-care centers blocked by federal court order. The Obama administration also warned states that continuing to try and strip Medicaid funding to Planned Parenthood centers violated federal law, though that did not stop such efforts throughout the country.

Additionally, congressional Republicans began their own investigations and defunding efforts, holding at least five separate hearings and as many defunding votes. Planned Parenthood Federation of America (PPFA) President Cecile Richards provided hours of congressional testimony on the lawful fetal tissue donation option available to some Planned Parenthood patients. Other affiliates do not offer such donation programs at all.

Not a single investigation at either the state or federal level has produced evidence of any wrongdoing. Still, many continue today. To date, Congress alone has spent almost $790,000 on the matter.

Violence Against Clinics Escalated

Just weeks after CMP released its first video, there was an act of arson at a Planned Parenthood health center in Aurora, Illinois. The following month, and after the release of three more smear videos, a car fire broke out behind a locked gate at Planned Parenthood in New Orleans. Abortion clinic staff and doctors around the country reported a significant uptick in threats of violence as Daleiden and CMP released the videos in a slow drip.

That violence spiked in November 2015, when Robert Lewis Dear Jr. was arrested for opening fire at a Colorado Springs Planned Parenthood, a siege that left three dead. Dear told investigating officers his violence was “for the babies” because Planned Parenthood was “selling baby parts.” A Colorado court has so far deemed Dear incompetent to stand trial. Dear’s siege was not the last incident of clinic violence apparently inspired by Daleiden and CMP, but it has, to date, been the most lethal.

Dear’s next competency hearing is currently scheduled for Aug. 11.

A Lot of Lawsuits Got Filed

The tissue procurement company StemExpress and the National Abortion Federation (NAF) filed suits in July of last year. In January 2016, Planned Parenthood did the same, alleging that Daleiden and CMP had engaged in conspiracy and racketeering, among other things.

StemExpress Sued Daleiden and CMP

StemExpress, one company to whom Planned Parenthood was supposedly selling tissue, sued CMP, Daleiden, and Merritt in California state court. StemExpress asked the court for an injunction blocking CMP from releasing any more videos that were surreptitiously recorded at meetings the pair of anti-choice activists had with StemExpress staff. The complaint also included allegations of conspiracy, invasion of privacy, and conversion of property (based upon Daleiden’s taking confidential information from a former StemExpress employee, including accessing her StemExpress email account after she was no longer employed at the company).

Although it issued a temporary restraining order (TRO), the court ultimately declined to convert that into an injunction, citing First Amendment concerns that to do so would constitute prior restraint, or pre-publication censorship, on Daleiden and Merritt’s right to free speech. In other words, Daleiden and Merritt are free—at least under this court order—to continue releasing videos involving StemExpress employees while the suit proceeds.

The case is set for trial in January 2017.

National Abortion Federation Sued Daleiden and CMP

About the same time that CMP and Daleiden were battling StemExpress in court, NAF filed suit in federal court in San Francisco, alleging civil conspiracy, racketeering, fraud, and breach of contract, among other claims. Like StemExpress, NAF sought a temporary restraining order blocking any further release of the attack videos. Judge William Orrick issued the TRO and later, after a protracted discovery battle, converted it into a preliminary injunction. Thus, CMP is prohibited from publishing any videos of footage taken at NAF’s annual meetings, which Daleiden and Merritt infiltrated in 2014 and 2015, while the suit proceeds.

As they had in their battle with StemExpress, Daleiden and CMP claimed that prohibiting publication of the videos constituted a prior restraint on speech, in violation of the First Amendment. But unlike StemExpress, which was trying to prohibit the publication of videos detailing conversations that took place in a restaurant, NAF sought to prohibit publication of video footage secretly recorded at meetings. Judge Orrick found that Daleiden had waived his First Amendment rights when he signed a confidentiality agreement at those meetings promising not to disclose any information he gained at them.

And, as in other court battles, one of the preeminent claims Daleiden and his cohorts raised to excuse his tactics—creating a fake tissue procurement company, assuming false identities through the use of false identification cards, getting people drunk in order to elicit damaging statements from them, and signing confidentiality agreements with no intention of following them—was that Daleiden is an investigative journalist.

Judge Orrick condemned this argument in strong terms: “Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project—achieved in large part from the infiltration—thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not—as Daleiden repeatedly asserts—use widely accepted investigatory journalism techniques.”

In an amicus brief in the same lawsuit, submitted to the Ninth Circuit Court of Appeals in early June, 18 of the country’s leading journalists and journalism scholars noted that “by calling himself an ‘investigative journalist,’ Appellant David Daleiden does not make it so.”

“We believe that accepting Mr. Daleiden’s claim that he merely engaged in ‘standard undercover journalism techniques’ would be both wrong and damaging to the vital role that journalism serves in our society,” the journalists and scholars continued.

Daleiden and CMP have appealed the preliminary injunction order to the Ninth Circuit Court of Appeals, where the case currently sits pending a decision.

Planned Parenthood Sued Daleiden and CMP

Six months after StemExpress and NAF filed their lawsuits against the orchestrators of the smear campaign, PPFA filed a whopping one of its own in California federal court, alleging civil conspiracy, racketeering, fraud, trespass, and breach of contract, among other civil and criminal allegations. PPFA was joined by several affiliates—including Planned Parenthood of the Rocky Mountains, where Dear was arrested for opening fire in November.

Daleiden has asked the court to dismiss Planned Parenthood’s claims. The court has so far declined to do so.

David Daleiden and Sandra Merritt Were Indicted on Felony Charges

Daleiden and his allies have not fared well in the civil lawsuits filed against them. But both Daleiden and Merritt also have pending criminal cases. After an investigation into Planned Parenthood Gulf Coast sparked by Daleiden’s claims, a Texas grand jury declined to indict the health-care organization for any criminal conduct. The grand jury instead returned an indictment against Daleiden and Merritt on a felony charge of tampering with a governmental record, related to their use of false California driver’s licenses in order to gain entrance into the clinic. Daleiden was additionally charged with a misdemeanor count related to the purchase or sale of human organs.

In June, Harris County Criminal Court at Law Judge Diane Bull dismissed the misdemeanor charge. Daleiden and Merritt’s attorneys, who called the dismissal a victory for the anti-choice movement, are still trying to get the felony charged dismissed.

Commentary Politics

Pennsylvania Lawmakers Square Off Over Abortion Law, New Bill

Tara Murtha

Anti-choice legislators in Pennsylvania recently pulled out all the stops when debating a bill that would be one of the nation's harshest abortion laws if passed. But in the wake of a recent Supreme Court ruling, other state lawmakers are trying to stop that bill and change existing policy.

With the new U.S. Supreme Court abortion ruling, some Pennsylvania lawmakers want to roll back provisions similar to those struck down in Texas—and to head off any new restrictions in a bill debated on the house floor in late June.

Several legislators have called for repeal of Act 122, which was enacted in 2012 and mandates that Pennsylvania abortion clinics meet the standards of ambulatory surgical centers.

The U.S. Supreme Court struck down Texas’ ambulatory surgical center provision in the 5-3 Whole Woman’s Health v. Hellerstedt decision. Justice Stephen Breyer concluded in the opinion that the provision represented a “substantial obstacle in the path of women seeking a previability abortion” and was unconstitutional.

Soon after the decision, Sen. Daylin Leach (D-Montgomery/Delaware), a member of the bipartisan Women’s Health Caucus of the Pennsylvania legislature, wrote a memo recommending repeal of Act 122. And at a June 30 press conference organized by the caucus, Rep. Steven Santarsiero (D-Bucks) introduced legislation to do just that. He weighed in on another bill, HB 1948, discussed in the house on June 21.

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During that debate, “[anti-choice lawmakers] were exposed, they were unmasked,” Rep. Santarsiero said. “They stood one person after another after another in support of [HB 1948], and they came right out and said this is all about the anti-choice movement. They were exposed. They tried 20 years ago to claim it was not about that, but they’re not making any pretense at this point.”

Like Act 122, HB 1948 is an urgent matter. Anti-choice lawmaker Rep. Kathy Rapp (R-Warren) introduced the latter legislation in April, which would be one of the most severe laws in the country if enacted. HB 1948 would ban abortion beginning at 20 weeksIt also includes a “method ban” provision, which would criminalize dilation and evacuation (D and E), often used after miscarriages and for abortions earlier than 20 weeks.

Currently, HB 1948 is still on the schedule of the Pennsylvania Senate Judiciary committee. Though the senate may reconvene this summer, it’s unclear when or whether HB 1948 will move forward.

But advocates must not lose sight of this bill. 

A ‘Dangerous Precedent’

HB 1948 inserts the legislature into the doctor-patient relationship, forcing medical professionals, ordinary Pennsylvanians, and even some legislators out of the process. In April, lawmakers twice rejected requests for input on HB 1948 from both medical professionals and the public. When Rep. Dan Frankel (D-Allegheny) spoke out against the bill, his microphone was reportedly cut off.

Struggling to be heard, doctors and relevant medical associations sent open letters and wrote op-eds against the bill. “We are highly concerned that the bill sets a dangerous precedent by legislating specific treatment protocols,” wrote Scott E. Shapiro, president of the Pennsylvania Medical Society, in an April letter sent to legislators.

They are right to be concerned. Around the country, lawmakers with no medical training frequently propose method bans to criminalize the safest, medically proven procedures. They then threaten to imprison doctors if they don’t provide less-than-optimal care for their patients. This kind of legislative coercion brings to mind Donald Trump’s March statement that women who seek abortion should suffer “some form of punishment” for having an abortion.

Punishment, indeed. Under HB 1948, the punishment can go one of two ways: Either women receive less-than-optimal care, or doctors must be incarcerated. While considering the potential fiscal impact of HB 1948, lawmakers discussed how much it would cost to imprison doctors: $35,000 a year, the annual expense to care for an inmate in Pennsylvania.

My colleagues here at the Women’s Law Project, who co-authored a brief cited by Justice Ruth Bader Ginsburg in her Whole Woman’s Health v. Hellerstedt concurrence, have sent an open letter to senate leadership asking them to remove HB 1948 from further consideration.

The letter said:

If enacted, HB 1948 would inflict even greater harm on the health of Pennsylvania women than House Bill 2 would have inflicted on Texas women. Relevant medical experts such as the Pennsylvania section of the American Congress of Obstetricians and Gynecologists (ACOG) and the Pennsylvania Medical Society strongly oppose this bill.

Under well-established constitutional standards, HB 1948 is quite clearly unconstitutional.

The Strange Debate About HB 1948

For a while, HB 1948 seemed to have stalled—like much business in the legislature. It took more than 270 days to finalize the 2015 budget—an impasse that forced dozens of nonprofit organizations serving rape survivors, domestic violence victims, hungry children, and the elderly to lay off workers and turn away clients.

But in April, Pennsylvania lawmakers whisked HB 1948 to the floor within 24 hours. Then, on June 21, the bill suddenly sailed through the appropriations committee and was rushed to the house floor for third consideration.

HB 1948 passed the house after the kind of bizarre, cringe-worthy debate that makes “Pennsylvania House of Representatives” feel like an insult to the good people of the state. Surely, Pennsylvanians can represent themselves better than elected officials who want to punish abortion providers, liken abortions to leeches, ignore science, and compare abortion regulations to laws restricting pigeon shooting. Surely, they can do better than the legislators who hosted the June 21 farce of a debate about a bill designed to force women to carry unviable pregnancies to term.

At that debate, primary sponsor Rep. Rapp stood for questions about HB 1948. But when Rep. Leanne Krueger-Braneky (D-Delaware County) began the debate by asking Rapp about what doctors, if any, were consulted during the drafting of the bill, Speaker of the House Mike Turzai (R-Allegheny) halted proceedings to consider if such a question is permissible. Also a co-sponsor of the bill, he concluded it was not, offering the explanation that legislators can inquire about the content of the bill, but not its source or development.

Rapp eventually stated she had many meetings while drafting the bill, but refused to answer with whom. She invoked “legislator’s privilege” and insisted the meetings were “private.” Legislator’s privilege is an esoteric provision in the state constitution intended to protect the process from undue influence of lobbyists, not shield lobbyists from public inquiry.

The bill’s language—referring to D and E by the nonmedical term “dismemberment abortion”—echoes legislation promoted by the National Right to Life Committee (NRLC). The NRLC has also drafted boilerplate 20-week bans, along with Americans United for Life, an anti-choice organization and a leading architect of the incremental strategy for building barriers to access safe and legal reproductive health care.

Next, Rep. Madeleine Dean (D-Montgomery) asked Rapp if similar bills have been deemed unconstitutional in other states.

Indeed, they have. According to Elizabeth Nash, senior state issues advocate at the Guttmacher Institute, similar D and E bans have been blocked in Oklahoma and Kansas, and 20-week bans have been struck down in Arizona and Idaho. HB 1948 is one of the first pieces of legislation to combine both provisions into one bill; at the Women’s Law Project, we call it a “double abortion ban.”

But no one in the chambers would know that these anti-abortion restrictions have been obstructed because, once again, Speaker Turzai halted the proceedings over these questions. This time, he stopped the debate citing the house rule that lawmakers cannot ask a question if they already know, or the speaker suspects they know, the answer.

In any case, so it went. Pro-choice lawmakers of the Women’s Health Caucus of the Pennsylvania Legislature spoke out against the bill, reading letters from physicians and sharing tragic stories of family members who died after being denied abortion care during severe pregnancy complications.

When Rep. Rapp was asked if she knew that many severe fetal abnormalities were not diagnosed until or after the 20th week of pregnancy, she responded that many were not diagnosed until birth, which misses the point: HB 1948 is designed to deprive women who receive a diagnosis of a severe fetal anomaly, even unviable pregnancy, at 20 weeks or later of safe and legal abortion.

That’s alright with Rapp and others pushing HB 1948; the bill contains no exemptions for fetal anomalies or pregnancies that were a result of rape.

The bill’s supporters didn’t refute allegations that if passed into law, it would negatively affect health care. They argued their case by invoking metaphors instead. They compared abortion regulations to laws about pigeon shoots. They compared fetuses to bald eagles and abortion to leeches. A white male legislator, a description unfortunately almost synonymous with “Pennsylvania legislator,” compared abortion to slavery, drawing the ire of Rep. Jordan Harris (D-Philadelphia).

“We use slavery references when it benefits, but won’t do anything about the systems that negatively affect their descendants,” tweeted Rep. Harris.

Democratic Rep. Dan Frankel, co-chair of the Women’s Health Caucus, attempted to put the bill into context by noting the barrage of abortion restrictions passed in Pennsylvania already. In addition to the ambulatory surgical facility requirement, the state already has a ban prohibiting women from purchasing affordable health insurance that covers abortion through the exchange; an arbitrary 24-hour mandated waiting period; and a Medicaid ban that allows federal funding of abortions only in cases of rape, incest, or life endangerment.

The house voted 132-65 in favor of the bill, mostly among party lines, though 25 Democrats voted for it and nine Republicans voted against it. Gov. Wolf has promised he will veto it if passes, while HB 1948 proponents are working to gather enough votes for an override if necessary.