It was predictable that, in the illegal and deplorable actions of Dr. Kermit Gosnell, who was convicted of murder and involuntary manslaughter earlier this month for deaths he caused at his Philadelphia abortion clinic, anti-choice activists would find a rationale for curtailing women’s rights.
Because Gosnell’s market was poor women whose pregnancies sometimes exceeded the legal gestational limit under Pennsylvania law, right-wing activists pounced on the topic of later abortion—whose low incidence accounts for about 1.3 percent of all abortions, according to the Centers for Disease Control and Prevention—as a way of framing all abortion in the most grisly of terms. The later abortion focus now appears to be part of a legislative strategy to further chip away at the reproductive rights of women by conferring equal or greater rights upon fetuses.
When the Gosnell case went to trial, right-wing activists saw their moment at hand, and got busy.
Live Action, famous for Lila Rose’s often deceptively edited videos on abortion clinics, released a new video on May 1 focused on later abortion.
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The day of Gosnell’s conviction, the Family Research Council (FRC) and the National Right to Life Committee (NRLC) issued press releases calling for a ban of later abortions in the District of Columbia (which is largely under the control of Congress).
The day after the Gosnell verdict was announced, activist Star Parker—whose group, the Center for Urban Renewal and Education (CURE), is closely allied with FRC—convened a group of African-American pastors on Capitol Hill to demand congressional hearings on abortion as an alleged plot against Black people. Tim Goeglein, the chief lobbyist for the right-wing Focus on the Family empire, appeared on the panel for CURE’s May 13 legislative briefing.
But before the Gosnell case caught the public’s attention, the NRLC had declared its most important national legislative priority to be the District of Columbia 20-week abortion ban, which, if voted into law, would affect only women who sought abortions in Washington, D.C. The “Pain-Capable Unborn Child Protection Act” would ban abortions after 20 weeks from the date of fertilization, based on the disproven theory that fetuses beyond that level of gestation feel pain, all in an apparent effort to confer the rights of personhood on fetuses. (Nine states have passed bills based on the NRLC model legislation. But measures that would extend the rights of personhood to human zygotes and embryos have yet to become law, although they have been introduced in nine states.)
Passage of such a bill by Congress would constitute a direct challenge to Roe v. Wade, the Supreme Court decision that legalized abortion up to the point of fetal viability, generally accepted as occurring at around 24 weeks.
In the U.S. Capitol, right-wing legislators took the hint, embarking on a festival of grandstanding that is likely to continue for months, all apparently designed to shift public opinion on a woman’s right to choose (while safeguarding incumbent House Republicans from primary challenges). And now NRLC has endorsed an attempt in Congress to make its proposed later abortion ban apply to all 50 states. Here are the four lawmakers currently in the limelight for playing politics with women’s rights.
1. Rep. Trent Franks (R-AZ)
It was Franks who last month introduced the version of the National Right to Life Committee’s later abortion ban that would have applied only to the District of Columbia if it passed both houses of Congress, and would then likely have to override a presidential veto. That’s a pretty heavy lift.
So given the bill’s likely failure, why not use the publicity surrounding the Gosnell verdict to make a bigger splash, rewriting it to apply to all 50 states, as well, for the opportunity to hold a variety show of hearings for the benefit of anti-choice lawmakers? That’s apparently the way Franks, who sits on the House Judiciary Committee and chairs the Subcommittee on the Constitution and Civil Justice, is thinking—because that’s exactly what he did on May 18 when he announced his intention to introduce a bill rewritten that way.
The first subcommittee hearing on the newly nationalized bill is scheduled for May 23. At a hearing for the D.C.-specific version of the bill introduced last year, Franks refused to allow Del. Eleanor Holmes Norton, the District of Columbia’s representative in Congress, to testify.
Franks also subscribes to the conspiracy theory that abortion is a plot by white eugenicists to wipe out the Black race. (See David Weigel’s 2010 report here.)
2. Rep. Bob Goodlatte (R-VA)
As chairman of the House Judiciary Committee, Goodlatte saw in the Gosnell case an opportunity to use his committee’s power to make demands of the attorneys general of all 50 states, with a letter co-signed by Franks, that requires answers and supporting documentation to three questions regarding the statutes and procedures of the individual states regarding the treatment of fetuses and infants in abortion clinics, one about deaths of women in abortion clinics, and one about the state’s own gestational limits for legal abortion.
In the letter, dated May 7, 2013, Goodlatte sets a June 1 deadline for the provision of answers by state officials. (Compliance by the state attorneys general is optional, but the committee could issue a subpoena for the requested materials.)
Congressional jurisdiction does not generally apply to the actions of law enforcement personnel or legislators in state government, unless they are in conflict with federal law. So, in a press release issued by the Judiciary Committee, the Goodlatte letter is described as an attempt to determine “if the federal government might be able to partner with states to prevent newborn homicides.”
However, the first question asked by Goodlatte in the letter also asserts the committee’s interest in determining the state’s compliance with the federal 2002 “Infants Born-Alive Protection Act.”
Among the questions asked by Goodlatte and Franks in their letter:
“Do prosecutors in your state treat the deliberate killing of newborns, including those newborns who were born alive in the process of abortions, as a criminal offense? If so, have there been any prosecutions of this crime in your state?”
“Does your state have different statutes of limitation for culpability in the death of an infant and culpability and culpability for the deaths of human beings in later stages of development? If so, what is the understood rationale for that difference?”
In addition, Goodlatte and Franks ask the attorneys general to provide logs involving cases of women who have died or “suffered serious complications as a result of an abortion,” as well as logs of any cases that may have been prosecuted for abortions carried out beyond the state’s legal gestational limit.
As he faces reelection in 2014, Goodlatte’s abortion gambit may serve as one way to protect him from a primary challenge.
3. Fred Upton (R-MI)
As chairman of the House Energy and Commerce Committee, Upton issued his own letter to the attorneys general in all 50 states, containing a potentially burdensome battery of questions on topics ranging from the licensing and regulation of abortion clinics that include demands for records and other supporting materials for a five-year period beginning in 2008. (The politically minded will note that the 2008-2013 period coincides with the election and subsequent presidency of Barack Obama.) The letter is dated May 7, 2013, and set a deadline of May 22 for compliance with the committee’s demands.
The letter from the Energy and Commerce Committee is significant because the Constitution gives Congress the power to regulate interstate commerce, and since women often find it necessary to cross state lines in order to obtain an abortion, the Health subcommittee of Energy and Commerce claims a certain level of jurisdiction. Like the letter sent to state attorneys general by the Judiciary Committee, failure to comply with the Energy and Commerce Committee requests do not carry a legal penalty, but the committee does have subpoena power.
In addition to a long list of technical questions regarding the inspection and licensing of abortion clinics, the Energy and Commerce committee chair also asks state officials to detail what steps the state has taken to ensure that at every clinic there is “a designated individual to report suspected medical neglect (including withholding of medically indicated treatment of disabled infants with life-threatening conditions) to the state child protective services agency.” The letter states that this is necessary in order for a state to comply with the 2005 federal Child Abuse Prevention and Treatment Act.
Despite his embrace of anti-choice positions, Upton isn’t a darling of the GOP’s right wing. In 2011, he managed to bring his National Right to Life Committee vote score up to 100 percent after scoring a mere 75 percent in 2009. With this letter, he apparently hopes to keep that full-bore rating going into the 2014 congressional elections. In fact, Upton only secured his chairmanship of the committee after GOP leaders promised the NRLC that they would name the stalwart anti-choice Rep. Joe Pitts (R-PA) to head the health subcommittee.
In any hearings prompted by the states’ response to the Goodlatte letter (which was co-signed by Pitts and other subcommittee chairs), Pitts can be expected to play a prominent role.
4. Sen. Mike Lee (R-UT)
When he’s not crusading against the United Nations, Mike Lee can be counted on to lead the charge against women’s rights. As the Gosnell trial unfolded, Lee offered a resolution on May 8, blocked by Democrats, that seemed to paint virtually all abortion clinics in Gosnell’s image, and called for national hearings on later abortions. (The Democrats, led by Sen. Richard Blumenthal (D-CT), instead offered their own resolution, which condemned abusive and unsanitary conditions in any health-care facility, not just abortion clinics.)
Lee’s resolution read, in part:
Congress has the responsibility to investigate and conduct hearings on abortions performed near, at, or after viability in the United States…and evaluate the extent to which such abortions involve violations of the natural right to life of infants who are born alive, or are capable of being born alive, and therefore are entitled to equal protection under the law.
The day before, Lee introduced a Senate version of the NRLC bill that would ban later abortion in Washington, D.C. Although the bill has virtually no chance of passage in the Senate, where Democrats hold the majority, it is gathering Republican co-sponsors, who now number 33.