Republicans to Use 20-Week Abortion Ban Against Vulnerable Senate Democrats (Updated)

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Republicans to Use 20-Week Abortion Ban Against Vulnerable Senate Democrats (Updated)

Christine Grimaldi

Anti-choice leaders are watching, and pouncing, on Democratic infighting about an abortion rights “litmus test.”

UPDATE, October 3, 6:10 p.m.: The House voted 237-189 mostly along party lines to pass the 20-week abortion ban. The office of Sen. Mitch McConnell (R-KY) last week wouldn’t divulge whether the Senate majority leader intends to bring the bill to the floor, where it would almost certainly fail.

An unconstitutional 20-week abortion ban scheduled for a vote in the U.S. House of Representatives next week likely won’t get far in the U.S. Senate. But a prominent opponent of abortion rights hopes the bill will apply pressure to vulnerable Senate Democrats, strengthening Republicans’ majority and ending the legislative firewall between a nationwide prohibition on legal abortion care at 20 weeks.

“There’s a lot of reasons to vote on legislation. One is to pass it [and] have the president sign it,” Susan B. Anthony (SBA) List President Marjorie Dannenfelser told Rewire Tuesday in an interview outside the U.S. Capitol. “Another is to make sure there is a very high-level public conversation,” especially “while we elect new senators who will add to the winning total.”

Dannenfelser joined a handful of the most vociferously anti-choice congressional Republicans in touting the dubiously titled Pain-Capable Unborn Child Protection Act (HR 36). Standing in the shadow of the Capitol building, the group repeatedly raised medically unsupported and unscientific claims that fetuses can feel pain at 20 weeks’ gestation. Major medical groups, including the American Congress of Obstetricians and Gynecologists and the British Royal College of Obstetricians and Gynaecologists, agree that a fetus does not develop to the point where it can feel pain until the third trimester, which begins around the 28th week of pregnancy. Doctors who testify otherwise are often “false witnesses” with a history of anti-choice activism.

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Legal experts believe 20-week bans are unconstitutional because they undermine a key provision of Roe v. Wade, which established the right to an abortion in the United States up until fetal viability, generally determined by doctors to be around 24 weeks’ gestation. 

House Majority Leader Kevin McCarthy (R-CA) set a vote on HR 36 for October 3. Versions of the bill passed the House in 2013 and 2015.

Dannenfelser acknowledged that HR 36 faces the same parliamentary environment as it did in 2015, when the Senate blocked the bill. Senate Republicans at the time used the Center for Medical Progress’ discredited anti-abortion propaganda campaign against Planned Parenthood as an excuse to advance the bill, but their attempt fell short of the 60-vote threshold to pass most controversial legislation without a potential derailment in the form of a filibuster. Republicans still don’t have the votes, even with three Democrats—Sens. Bob Casey (PA), Joe Donnelly (IN), and Joe Manchin (WV)—likely willing to again cross party lines.

SBA List’s strategy plays into another high-level conversation occurring across the aisle. High-profile Democrats have increasingly cast off the notion of an abortion “litmus test” as an indicator of party loyalty, going as far as to invite anti-choice candidates into the fold. Advocates warned that Democrats consequently risked alienating core voters, especially Black women and other women of color. In the words of All* Above All’s Destiny Lopez, “it’s short-sighted and dangerous to pave the path to victory in 2018 at the expense of women.”

SBA List is now pouncing on Democrats’ self-inflicted vulnerabilities.

“Odds are, we’re not going to win this vote [on HR 36],” Dannenfelser said. “But Democrats, evidenced by the big arguments within the Democratic Party about whether this is a litmus test, are really having trouble advancing late-term abortion as a humanitarian cause. That’s what we want to highlight.”

Dannenfelser hopes a vote will prod Sen. Heidi Heitkamp (D-ND) to break party ranks—and make Sen. Claire McCaskill (D-MO) “very sorry” if she doesn’t, as expected. Both are facing tough reelections in ruby-red states.

Senate Majority Leader Mitch McConnell (R-KY) is willing to bring up the bill, Dannenfelser said.

“We’ve talked to him many times about this,” Dannenfelser said. “He has no problem bringing it up on the floor as an important thing to get people on record for, to have the conversation, to build the vote ’til next time.

A McConnell spokesperson declined to comment on what, if any, commitments the majority leader has made to abortion rights opponents, nor if he plans to move forward with HR 36.

Rep. Trent Franks (R-AZ), the lead sponsor of HR 36, slammed McConnell for failing to act in an interview with Rewire last October. Franks has repeatedly called on McConnell to end the filibuster in the service of passing anti-choice bills; President Trump has done the same in the service of passing his agenda.

Trump campaigned on promises to end legal abortion, including the 20-week ban, in order to secure support from anti-choice groups. Dannenfelser chaired his “Pro-Life Coalition” to bolster his campaign in the final stretch before Election Day.

Right now, there’s no legislative counterpart to HR 36 in the Senate. Sen. Lindsey Graham (R-SC)—of the failed Graham-Cassidy Obamacare repeal bill undermining reproductive health, including access to affordable birth controlintroduced a related bill in 2013 and the version that failed to advance in 2015. 

On the House side, McCarthy initially ended Tuesday’s press conference without taking any questions, rendering it a mere briefing if Rep. Diane Black (R-TN) had not quietly asked the group whether they would hear from the press.

That’s when Rewire piped up with the morning’s only questions: Does McCarthy have a commitment from the Senate to take up the 20-week ban? And does he plan to proceed with a House vote on a separate total abortion ban?

“I have a number of senators who have told me that they want to bring this bill up. So, we will have a very big vote in the House, send it to the Senate, [and] I hope the Senate does their work,” he said. “We will continue to push [for it].”

Republicans Plot Path Forward

The latest iteration of HR 36 again proposes to ban abortion at 20 weeks or more in all 50 states. Rewire’s legislative tracker outlines details, including the bill’s exceptions for an abortion that is necessary to save the life of the pregnant patient, or when the pregnancy is the result of rape or incest. The National Right to Life Committee copycat legislation includes only narrowly written exceptions: Rape survivors, for instance, must obtain counseling or medical treatment at least 48 hours prior to the abortion, and the counseling can’t take place at an abortion clinic. Dannenfelser previously objected to the rape exception.

The bill starts the clock on gestational age from the day of fertilization, rather than the day of a person’s last menstrual period—”the widely-accepted definition used by medical professionals and the Centers for Disease Control and Prevention,” Washington Post fact-checker Michelle Ye Hee Lee wrote in 2015.

House Republicans are eager to create fresh momentum for the bill.

Following Tuesday’s press conference, Franks chatted with Rep. Chris Smith (R-NJ), the abortion-obsessed lawmaker behind perennial GOP efforts to codify the Hyde Amendment and criminalize a common medical procedure, dilation and evacuation (D and E), used after miscarriages and during second-trimester abortions. Franks and Smith appeared to discuss renaming the bill “Micah’s Law” after Micah Pickering, who was born at 22 weeks. Micah’s parents brought him to the press conference, and anti-choice lawmakers and advocates repeatedly upheld his life as a refutation to later abortion care.


Franks confirmed Republicans’ plan.

“We’re going to name it after the little guy, because he speaks more eloquently than any of us,” Franks told Rewire in an interview. “He was born at 20 weeks, and you cannot deny his personhood or his presence in the world.”

“I believe Micah will come back,” McCarthy said in response to Rewire’s question about Senate prospects. McCarthy said Republicans would continue to wear bracelets in Micah’s honor as they push for the bill.

Total Abortion Ban Within Reach?

Republicans introduced their usual lineup of anti-choice bills, including the 20-week ban, at the beginning of the 115th Congress. But their debut “heartbeat bill” broke the mold in amounting to the nation’s first-ever total ban on legal abortion as early as six weeks into a pregnancy—before many people know they’re pregnant.

Franks on Tuesday said he didn’t “want to give away what the sponsor’s strategy might be,” referring to the strategy of Rep. Steve King (R-IA), who hasn’t publicly divulged plans to advance his total abortion ban. King is Capitol Hill’s pre-eminent white nationalist who counts abortion as one of his grievances against Black Americans and claims the United States “can’t restore our civilization with somebody else’s babies.” He helms the House Judiciary Subcommittee on the Constitution and Civil Justice, which hosted contentious hearings propping up racially biased anti-abortion myths in the 114th Congress under Franks’ leadership.

Franks couldn’t say when the bill would get a hearing in the subcommittee, just that “we should work very hard to see that bill brought to the floor and passed through both the House and the Senate.”

“I’m going to work to that end,” he said.

Franks approves of the GOP’s strategy to pursue the 20-week abortion ban first, since he claimed HR 36 had already gone through the committee process. He left out that the hearing and markup occurred four years ago, in the 113th Congress. A House Judiciary Committee aide confirmed that both occurred in 2013 prior to the bill’s initial passage that year.

Even as the total abortion ban remains stagnant on Capitol Hill, it’s found a foothold in the Trump administration. Former House Majority Leader Tom DeLay and Janet Porter, the anti-choice extremist behind Ohio’s failed version and congressional Republicans’ current attempt to criminalize the medical procedure, recently lobbied the White House on its behalf.

SBA List’s Dannenfelser wouldn’t talk about the total abortion ban lobbying efforts, even though DeLay’s and Porter’s White House meeting appeared to coincide with the group’s “Pro-Life Leaders Summit,” according to a deleted webpage.

Dannenfelser has frequented the White House since Inauguration Day. She was part of a group in February that helped select Neil Gorsuch for the U.S. Supreme Court, and in April, she stood alongside Trump as he signed legislation ending federal Title X family planning safeguards, according to pool reports. She attended dinner at the White House on Monday.

“All I can say is there are a lot of efforts, different efforts, and it’s kind of a flourishing of the pro-life movement right now,” Dannenfelser told Rewire. She ticked off the total abortion ban and the D and E ban before returning to the 20-week ban.

“Our top priority is this bill,” she said. “We’ve been building momentum in two elections for it, and we’re going to be injecting it in the 2018 elections.”