Congressional Republicans can’t use their tax cuts for the rich to define and codify the view that life begins at fertilization, according to the rules of the U.S. Senate.
The GOP’s initial tax proposals in the U.S. House of Representatives and the Senate each conferred 529 college savings plan benefits to an “unborn child…at any stage of development” in an unprecedented attempt to wield the tax code against reproductive rights. Republicans on Capitol Hill have long sought deeply unpopular fetal “personhood” bills that try to classify fertilized eggs, zygotes, embryos, and fetuses as “persons,” and to grant them full legal protection under the U.S. Constitution, including the right to life from the moment of conception. Personhood laws, repeatedly rejected by voters across the United States, would criminalize abortion with no exception and ban many forms of contraception, in vitro fertilization, and health care for pregnant people.
The latest fetal personhood effort ultimately violated rules associated with the fast-track process Republicans are using to pass their tax bill. Under “reconciliation,” Republicans need a simple 51-vote majority in the Senate instead of the 60-vote threshold typically required to bypass a filibuster and pass controversial legislation. But reconciliation is subject to the Byrd rule, which puts the kibosh on provisions that are “merely incidental” to the budget.
In other words, Congress can’t wield the reconciliation process for the sake of a political agenda.
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Enter the Senate parliamentarian, a nonpartisan, staff-level position tasked with enforcing the chamber’s rules and procedures. The Senate parliamentarian in July ruled against key anti-choice provisions—defunding Planned Parenthood and restricting abortion access—in the GOP’s repeated failed attempts to repeal the Affordable Care Act.
Early Friday evening, in the home stretch to the 1:36 a.m. Saturday vote on the tax plan, the Wall Street Journal’s Richard Rubin flagged that the fetal personhood provision violated the Byrd rule.
— Richard Rubin (@RichardRubinDC) December 2, 2017
Sen. Ron Wyden (OR), the top Democrat on the tax-writing Senate Finance Committee, and his staff challenged the personhood provision with the parliamentarian, said a Democratic aide in the chamber. The parliamentarian then “Byrded,” or ruled, the provision out of order, and Senate Republicans removed it to avoid a floor challenge, the aide told Rewire.
Wyden in an email said he “successfully struck several provisions that should never have been wedged into a tax bill, including the misguided Republican attempt to radically change the definition of personhood under the guise of helping parents save for their kids’ college education.”
“Burying personhood language in this tax bill that is primarily a handout for the wealthy is another attempt to carry out the Republicans’ perennial, extremist agenda to limit women’s reproductive autonomy,” he said.
A motion to waive the Byrd rule for the provision would return the threshold for passage to 60 votes, according to the nonpartisan Congressional Research Service. Most Senate Democrats would block the move, although anti-choice groups are using Democrats’ self-inflicted vulnerability on an abortion “litmus test” to end their legislative firewall on such proposals becoming law.
NARAL Pro-Choice America President Ilyse Hogue welcomed the news but remained wary.
“[Republicans] know they cannot achieve this goal of the anti-choice movement in the light of day, since it has failed every time it has been in front of the voters,” Hogue said in a statement. “So, we have every reason to expect they’ll try to do it again, and when they do NARAL members will be ready to fight this again.”
The House is scheduled to vote Monday evening on a motion to go to conference with the Senate and reconcile differences between the chambers’ tax bills. Among the consequences for people with low incomes and other marginalized people, the House and the Senate tax proposals make 529 college savings plans, the vehicle for the fetal personhood language, even more “deeply regressive” by similarly expanding them to K-12 private schools.