Commentary Abortion

How Republicans Are Distorting the Gosnell Case to Push a Federal 20-Week Abortion Ban

Tara Murtha

Gosnell’s murders were already illegal under current law, so neither HR 1797, nor any other 20-week ban, would prevent another Gosnell. But anti-choice laws could push more women to obtain unsafe abortions.

See all our coverage of HR 1797 here.

After apparently having exhausted the distortion and exploitation of the Kermit Gosnell case to push targeted regulation of abortion providers (TRAP) laws through state legislatures, anti-choice lawmakers are twisting the facts of the case yet again to suit a new purpose.

This time, they are disingenuously claiming that rolling back the number of weeks after which it is illegal to have an abortion will “prevent more Gosnells.” HR 1797, the bill that passed the U.S. House Tuesday, would ban abortion after 20 weeks post-fertilization, or 22 weeks’ gestation. (Under Roe v. Wade, abortion is legal, with restrictions, until viability, which is considered to be approximately 24 weeks into pregnancy.)

HR 1797

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HR 1797 is titled the Pain-Capable Unborn Child Protection Act, even though scientific studies, and meta-analysis of said studies, have found no evidence of fetal pain until the third trimester. Rep. Trent Franks (R-AZ) proposed the legislation, despite the fact that a 20-week abortion ban passed in his state was recently ruled unconstitutional. Grounding the bill in faux science is no surprise, given Franks’ role in founding the Arizona Family Research Institute, a group linked to the notorious Focus on the Family, a devoutly anti-choice (and anti-LGBTQ rights) organization that promotes an anti-science fringe agenda such as teaching “Creationism” and abstinence-only education. As a young politician, Franks reportedly donned a tie tack in the shape of fetal feet.

As the bill was furiously debated in the House Tuesday, hardly a minute went by without a mention of Gosnell. Gosnell, of course, is the infamous Philadelphia doctor recently convicted of the first-degree murder of three babies, voluntary manslaughter of a Bhutanese immigrant named Karnamaya Mongar, and 21 counts of abortion past the legal gestational date (24 weeks in Pennsylvania), among other charges.

“The trial of Kermit Gosnell exposed late abortions for what they really are: relocated infanticide,” Franks in a statement about the bill.

His statement echoes anti-choice rhetoric surrounding the Gosnell case; if Gosnell’s victims had been in a womb, they say, his actions would have been legal—or, as Kirstin Powers put it, it’s “merely a matter of geography.”

But it’s not accurate.

Gosnell was convicted of involuntary manslaughter of Mongar and of first-degree murder of three babies, referred to as Babies A, C, and D in the grand jury report and throughout the trial. From the grand jury report, describing Baby A: “His 17-year old mother was almost 30 weeks pregnant.” Baby C, according to the grand jury report, was “at least 28 weeks of gestational age.” The grand jury did not know the exact gestational age of Baby D, though experts used a review of neonatology charts to conclude that the age was “consistent with viability.” In other words, each of these were third trimester pregnancies.

Gosnell’s “procedures” were illegal under current law. A 20-week post-fertilization ban would not make them any more illegal. If passed into law, HR 1797, or any other 20-week ban, would not prevent another Gosnell.

Meanwhile, abortions performed in weeks 20 through 24 are statistically rare. According to the Centers for Disease Control and Prevention’s latest abortion surveillance report, based on data from 2009, 91.7 percent of abortions were performed at or before 13 weeks gestation. Only 1.3 percent of abortions occurred at or after 21 weeks’ gestation.

“More Gosnells”?

Beyond the junk science and bad logic, however, there is evidence that laws making it more difficult for women to find abortion services will lead more women to share the tragic fate of Karnamaya Mongar at the hands of providers like Kermit Gosnell.

Mongar was a 41-year-old grandmother who, after 20 years in a refugee camp in Nepal, was relocated to the United States. She only lived here four months before her heart stopped on the table in Gosnell’s clinic.

Under Roe, abortion is technically legal up to 24 weeks, but that doesn’t mean it’s available. Mongar’s tragic story shows that what’s legal becomes irrelevant where there’s no access.

At trial, Mongar’s daughter testified that her mother was 14- to 15-weeks pregnant when she first tried to find an abortion clinic in Virginia. One clinic allegedly turned her away because she was two weeks too far along. She traveled to a clinic in Washington, D.C., but was again turned away.

We don’t know exactly why Mongar didn’t seek an abortion until early in her second trimester. According to a 2009 article in the American Journal of Public Health, the reasons women seek second-trimester abortions “include cost and access barriers, late detection of pregnancy, and difficulty deciding whether to continue the pregnancy.” Poor women of color like Mongar are more likely to seek second-trimester abortions.

What we do know is that Mongar sought an abortion for the same reason so many women do: Getting by on food stamps, her family was already struggling and she didn’t think she could care for another child.

Time didn’t stop. According to the American Journal of Public Health article, the majority of abortions between 17 and 24 weeks are performed in just a few freestanding abortion clinics. Mongar, who couldn’t speak English, couldn’t find one. Unable to find safe, legal abortion near her home, she headed north to Philadelphia, where she found Dr. Gosnell’s clinic.

Meanwhile, though HR 1797 passed the House, it is all but assured not to pass the Senate, and the White House already issued a statement indicating the bill will be vetoed if it somehow makes it to the president’s desk. Beyond that, it would likely to ruled unconstitutional in the same way similar state-level bans have been routinely ruled unconstitutional. So why bother? Because exploiting the legislative process by turning it into a tax-funded theatrical PR event is an opportunity to misinform the public—and a strategically misinformed public is the key to success for this anti-science, anti-choice agenda.

News Abortion

Unconstitutional 20-Week Abortion Ban Primed to Pass in South Carolina

Teddy Wilson

The state senate passed the bill Tuesday in a 36-9 vote, as eight Democrats joined the Republican majority.

South Carolina Gov. Nikki Haley (R) said that she would likely sign an unconstitutional ban on abortion care at 20 or more weeks of pregnancy. The bill’s path to the governor’s desk, however, has become uncertain

H 3114, sponsored by Rep. Wendy Nanney (R-Greenville), would ban abortions at 20 weeks or more post-fertilization unless, in the physician’s judgment, abortion care is necessary to avert the pregnant person’s death or avoid the risk of physical impairment of a major bodily function, other than a psychological condition. The measure’s limited definition of “fetal anomaly” means it would be illegal to abort many fetuses with severe disabilities. Senate Democrats have previously blocked the legislation.

Physicians who violate the anti-choice measure could face up to a $10,000 fine and three years in prison.

“I can’t imagine any scenario in which I wouldn’t sign it,” Haley told the Associated Press.

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South Carolina’s Republican lawmakers have pushed for similar legislation before, but Democrats have managed to block their efforts. Republicans were able to pass the bill this year after an epic legislative journey, as lawmakers added and removed amendments and debated the language of the unconstitutional abortion ban.

At issue has been what exceptions would be included in the bill. The current bill allows exceptions if the pregnant person’s life is in jeopardy or a doctor determines the fetus can’t survive outside the womb. There is no exception for rape or incest.

House members amended the measure to include such exceptions after the bill was first introduced in January 2015. The state senate amended the bill and stripped out the exceptions after state Sen. Lee Bright (R-Spartanburg) filibustered the bill, charging there should be no exceptions included in the bill. 

The state senate passed the bill last week in a 36-9 vote, as eight Democrats joined the Republican majority in voting for the version of the bill negotiated by a conference committee of three house members and three state senators.

A two-thirds majority of state senators present is needed to approve the conference committee bill. However, a two-thirds majority of all representatives, regardless of whether or not they are present, is needed for approval in the house.

Two votes have failed to gain the 83 votes needed for approval. The house failed to pass the bill on March 9 by one vote, and again failed to pass the bill on March 10, falling three votes shy.

State Sen. Brad Hutto (D-Orangeburg) told the State that lawmakers have no business dictating to pregnant people what they should do about their health care. “I have faith in the women of South Carolina that they know best what to do when the time comes to make a decision about their bodies,” Hutto said.

Laws to ban abortion at or after 20 weeks of pregnancy with varying exceptions have been enacted in 16 states, and the courts have blocked those laws in three states: Arizona, Georgia, and Idaho.

The so-called Pain-Capable Unborn Child Protection Act, based on copycat legislation authored by the National Right to Life Committee (NRLC), justifies the ban on the theory that a fetus can experience pain at 20 weeks of pregnancy. The claim that fetuses can feel pain at 20 weeks has been discredited by medical professionals.

Hospitals are the only facilities in which pregnant people seeking to terminate a pregnancy at 20 weeks or later could obtain abortion care. South Carolina’s three abortion clinics do not provide the procedure past 18 weeks.

Lawmakers must approve the conference committee compromise bill by the time the legislative session ends in June.

News Abortion

Senate Blocks Unconstitutional 20-Week Abortion Ban

Emily Crockett

Opponents of HR 36 attacked the bill on the grounds that it is unconstitutional; violates the rights of women in desperate situations, including rape and incest victims; and threatens doctors with criminal penalties for trying to do what’s best for their patients.

See more of our coverage on the effects of the misleading Center for Medical Progress videos here.

Senate Democrats blocked a bill Tuesday that would have banned abortion nationwide after 20 weeks “post-fertilization,” or about 22 weeks’ gestation.

HR 36 passed the GOP-controlled House in May, but was not expected to get the 60 votes needed to break a filibuster in the Senate. The bill failed a vote to move ahead, 54 to 42.

Opponents of HR 36 attacked the bill on the grounds that it is unconstitutional; violates the rights of women in desperate situations, including rape and incest victims; and threatens doctors with criminal penalties for trying to do what’s best for their patients.

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Sen. Dianne Feinstein (D-CA) pointed out on the Senate floor that the bill is unconstitutional for two reasons: It bans abortion before a fetus is generally considered viable, and it does not include exceptions for a woman’s health—both of which contradict Roe v. Wade and other Supreme Court precedents.

“Only when a mother’s health deteriorates to the point that she could die does it allow an exception,” Feinstein said. “This is really shocking, because in no other circumstance would we restrict medical care until the patient is at risk of death.”

“Do we really want to make a criminal out of a physician who is trying to prevent a woman with preeclampsia from suffering damage to her kidneys or liver, or having a stroke or seizures?” said Sen. Susan Collins (R-ME). “Do we want the threat of prison for a doctor who knows that his pregnant patient needs chemotherapy or radiation treatments?”

Collins was one of just two Republicans, along with Sen. Mark Kirk (R-IL), who voted to block the bill. Three Democrats, Bob Casey (D-PA), Joe Donnelly (D-IN), and Joe Manchin (D-WV), voted to let the bill proceed.

“I saw the bill we’re voting on tomorrow and I felt sick to my stomach,” said Sen. Elizabeth Warren (D-MA) on the floor Monday.

Warren noted that the bill has no exceptions for fetal anomalies, which means that a woman would have to carry a doomed pregnancy for months after finding out at her 20-week ultrasound that her wanted child will die immediately after birth.

Under the GOP-backed bill, rape and incest victims would have to further delay abortion care by seeking counseling from doctors who do not perform abortions, or who do not even share an office with a doctor who does. Incest victims under the age of 18 would also have to file a police report.

“I cannot imagine that the U.S. Senate would pass a law to require a frightened 12-year-old girl to submit written proof that she had called the police to report a rape by her mother’s boyfriend before she could terminate that pregnancy,” Warren said.

An analysis by the Guttmacher Institute found that the burdens of a 20-week abortion ban would fall hardest on low-income women.

The same logic behind 20-week abortion bans has been used to threaten women into having unnecessary cesarean sections, according to the National Advocates for Pregnant Women.

A bill to defund Planned Parenthood was also filibustered in the Senate in August. Nonetheless, the Senate is expected to vote again on the issue Thursday, this time on a bill funding the federal government that also defunds Planned Parenthood.

Both votes appear to be inspired by discredited, deceptively edited videos released by an anti-choice front group, the Center for Medical Progress (CMP).

The CMP videos focus on fetal tissue research at Planned Parenthood, not the 1 percent of all abortions that are performed after 20 weeks. Yet many Republican lawmakers seem to be confusing the issue of funding Planned Parenthood with the issue of safe and legal later abortion.

Sens. Lindsey Graham (R-SC) and Tom Cotton (R-AK) both immediately pivoted to Planned Parenthood after making medically discredited claims that fetuses feel pain at 20 weeks.

Graham also appeared to confuse pregnancy with childbirth, alleging that Planned Parenthood is “harvesting organs from children late in the birthing process.”

Another point of confusion in the 20-week ban debate was the medically inaccurate language in the GOP-authored bill, which uses a method of dating pregnancies that is not accepted by the medical community. Republican lawmakers talked interchangeably about “20-week” fetuses (none of which have ever been known to survive) and fetuses of 22 weeks’ gestation, a very tiny minority (5 percent) of which can survive, often with complications.

“The challenge is that gestation is a gradual process, with no set moment at which a fetus would be viable upon delivery,” wrote Dr. Hal Lawrence, executive vice president of the American Congress of Obstetricians and Gynecologists (ACOG), in a piece for Time. “The sad reality is that even with the best medical care, early preterm birth remains dangerous.”

Senate Democrats slammed the GOP for wasting the few legislative days they have left before a government shutdown on October 1 on bills restricting abortion that are doomed to fail.

“Every senator in this body knows this bill is going nowhere. This attack is a waste of time. It will accomplish nothing,” said Sen. Harry Reid (D-NV) on the Senate floor.