A proposal to ban abortion care nationwide takes a key first step Wednesday in the “regular order” of how a bill proceeds through the U.S. House of Representatives to become law.
The so-called Heartbeat Protection Act (HR 490) is modeled on a failed Ohio Republican attempt to end legal abortion as early as six weeks into a pregnancy—before many people know they’re pregnant. As technology advances, the ban’s maestro, Faith2Action leader Janet Porter, hopes to end abortion access much earlier. She’s found an ally in Rep. Steve King (R-IA), who introduced the federal ban at her behest in January. King believes the U.S. Supreme Court “unconstitutionally decided” Roe v. Wade, which established the right to an abortion in the United States until fetal viability, determined by doctors to be around 24 weeks’ gestation.
Congressional Republicans’ sudden momentum on banning abortion as early as six weeks into a pregnancy falls in the shadow of an equally unconstitutional 20-week cutoff that the House passed in September. Reproductive health, rights, and justice advocates fear that the GOP might pull off a bait-and-switch to make the 20-week ban appear reasonable.
Could the total abortion ban become law? The ban’s future depends on its history, much of which is repeating itself on a national stage. Here are five important facts to know about the bill and the politics surrounding it.
Roe has collapsed in Texas, and that's just the beginning.
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1. The so-called heartbeat bill is an unconstitutional, medically unsupported, total abortion ban.
“When you’re talking about a fetus, the term ‘heartbeat’ isn’t even really accurate,” HuffPost‘s Erin Schumaker reported.
A fetal heartbeat is typically detectable at around five or six weeks into a pregnancy, according to Dr. Rebecca Cohen, an assistant professor of obstetrics and gynecology at the University of Colorado.
“It’s not a fully formed heart like you would understand from looking at an adult or even a young child,” Cohen said. “It’s a very early structure. We can see it on the ultrasound, but it’s not a heart, a fully developed organ, by any means.”
Moreover, cardiac activity isn’t a credible measure of fetal viability. This preliminary activity starts at a point in the pregnancy where there’s still a significant risk of miscarriage, and no real guarantee that the pregnancy will continue to be a healthy, uncomplicated one.
Total abortion bans are among the nation’s most extreme anti-choice measures, and federal courts have generally agreed, declaring them unconstitutional. That hasn’t stopped King from pursuing the ban from his position of power in Congress.
King admitted at a Capitol Hill press conference alongside Porter, herself considered too extreme for Christian talk radio, that his bill serves the same function as a total abortion ban. Porter persuaded King to act while both attended the funeral of Phyllis Schlafly, the notorious Equal Rights Amendment opponent, as People For the American Way’s Right Wing Watch first reported.
2. The hearing could get ugly.
The total abortion ban will play out in House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice, a forum for conservative and often racially biased anti-abortion myths. The hearing marks the debut of King, an unabashed white nationalist, as the subcommittee’s chair, and Rep. Karen Handel (R-GA), a longtime Planned Parenthood antagonist, as a potentially potent new voice on the panel.
As a member of the subcommittee, King in 2016 interrogated a reproductive justice advocate over whether killing “partially delivered” puppies would amount to a crime, in an apparent attempt to draw a parallel between dogs and Black babies. He subsequently rebuked Black people for exercising their constitutional right to abortion care in a post-hearing interview with Rewire. Another contentious hearing last year uplifted legislation to ban sex- and race-selective abortion care—a bill that would have, in the words of reproductive justice advocate Miriam Yeung, perpetuated “the offensive stereotype that Black women are unable to make reproductive health decisions for their own families.”
Wednesday’s hearing will feature three GOP witnesses, one of whom is known for particularly inflammatory takes on abortion rights and LGBTQ rights, according to Right Wing Watch. Another witness, Kathi Aultman, bills herself as an American College of Obstetricians and Gynecologists fellow, even though the College’s companion organization, the American Congress of Obstetricians and Gynecologists (ACOG), condemned the total abortion ban upon its introduction. A spokesperson for the College confirmed Aultman’s affiliation but said she’s not ACOG’s representative at the hearing.
For their sole witness, Democrats selected Priscilla Smith, a clinical lecturer with Yale University’s Program for the Study of Reproductive Justice, in keeping with the fact-based counterstrategy they described to fight the subcommittee’s bluster.
3. Congressional Republicans are following Ohio’s bait-and-switch anti-choice playbook.
State-level tactics to make onerous abortion restrictions seem more politically palatable in the face of a total abortion ban are now in play on Capitol Hill.
Standing next to Trump in the White House Rose Garden, Senate Majority Leader Mitch McConnell (R-KY) in mid-October pledged to schedule a vote on a 20-week abortion ban identical to the House’s cleared version, even though Democrats’ legislative firewall will likely shut it down. McConnell as of October 30 had not yet cued up the 20-week ban, according to a senior spokesperson who spoke with Rewire in a Senate hallway.
What will happen if and when McConnell follows through? Will Republicans paint the 20-week ban as a more middle-of-the-road option than the total abortion ban? Ohio Gov. John Kasich certainly did so. The former Republican presidential candidate, often erroneously portrayed as a moderate, in 2016 vetoed the total abortion ban the same day he signed a 20-week ban into law, reasoning that the 20-week ban would be more constitutionally prudent. It’s not.
Despite Kasich’s veto, anti-choice lawmakers keep reviving the total abortion ban. The Ohio House Health Committee scheduled a hearing Wednesday morning on the latest state-level version hours before the federal version was set to go before King’s subcommittee. And David Forte, one of the GOP witnesses to testify on Capitol Hill, helped draft state-level heartbeat bans, including Ohio’s.
Reproductive rights advocates smell strategy, not coincidence.
A 6 week ban is proposed at the same time the House voted for a 20 week ban. It’s a bait & switch to pass the 20 week ban. DON’T BE FOOLED. https://t.co/gSUWdVDisP
— Lauren Rankin (@laurenarankin) October 26, 2017
“It feels like it’s ripped from the Ohio playbook,” NARAL Pro-Choice Ohio Executive Director Kellie Copeland told Rewire in a phone interview. “That doesn’t mean that I think that the people behind the six-week bans are knowingly being utilized this way.”
“I think they sincerely want to pass their legislation. They want to outlaw all abortions for everyone, period. But so do the people behind the 20-week ban, or in Ohio’s case, now the Down syndrome ban. These are all pre-viability bans, they are all unconstitutional, they are all designed to be challenges to Roe v. Wade. Our opponents are trying to offer the U.S. Supreme Court, which they hope will be further influenced by another Trump appointee—they’re trying to provide that future court with a variety, like a buffet of options to say, ‘Well, you could use this one or this one or this one to overturn or to gut Roe v. Wade.’ That’s what this is really about.”
King is confident the total abortion ban would prevail in the nation’s highest court because, as he falsely claimed, “There’s nothing more precise in its medical definition than a heartbeat …. I don’t know how a court can rationalize their way around that.”
“People down the line, they’re going to say, ‘But it would go before the Supreme Court.’ And I expect it would. And I hope it does,” King told Rewire last week after a separate Judiciary subcommittee hearing.
4. But GOP leaders are following the momentum of the 20-week ban.
King wouldn’t comment on any commitments from GOP leaders to advance the total abortion ban in the House.
“We have a tremendous amount of momentum,” King said. “A lot of people thought at the beginning of this Congress that getting that many co-sponsors”—169—”on a heartbeat bill would be impossible …. I expect that number to go up, maybe before the hearing and more likely after the hearing.”
King described the hearing as laying the foundation for a potential committee markup, another next step in increasingly rare regular order on Capitol Hill. “There’s nobody in leadership that has expressed resistance to it,” King said. “They’re philosophically supportive of it, and so I think we have a little ways to go yet to make the case, but I think we can make the case.”
A spokesperson for House Speaker Paul Ryan (R-WI) deferred comment on the total abortion ban to the chair of the full House Judiciary Committee, immigration foe Rep. Bob Goodlatte (R-VA), and on the prospect for a vote to House Majority Leader Kevin McCarthy (R-CA).
Ryan’s spokesperson, AshLee Strong, would not say whether Ryan was “philosophically supportive” of the bill despite the speaker’s anti-choice credentials.
Two spokespeople for McCarthy, who sets the House floor schedule and has led 20-week ban rallying cries, did not respond to an email requesting comment.
Across the Capitol, the total abortion ban doesn’t seem to be on the Senate’s radar either.
The Senate is focused on the 20-week ban proposal, according to Sen. James Lankford (R-OK), a former Bible camp director behind perennial congressional GOP-led efforts to criminalize a common medical procedure used after miscarriages and during second-trimester abortions.
“I can’t imagine that we would skip to the next thing if we haven’t got this one done,” Lankford told Rewire in an interview near the Senate floor. “I’m not going to speak for the leader and what he’s going to try to bring up and how that would come up, but our first priority is the five-month piece.”
King won’t be stopped.
“My goal is to have the heartbeat bill on the floor of the House of Representatives January 19—that’s March for Life day,” King said.
5. The White House is on board—but it doesn’t want you to know.
The total abortion ban is associated with three prominent anti-choice lobbyists: Porter; Porter’s Faith2Action Legislative Director Rachelle Heidlebaugh, whose subscription LinkedIn page includes work for an anti-choice fake clinic and most recently, the Koch-funded Concerned Vets for America; and Tom DeLay, the former U.S. House of Representatives majority leader convicted on campaign finance violations that were later overturned on appeal.
The trio in September lobbied a top White House official in virulently anti-choice Vice President Mike Pence’s office. White House spokesperson Kelly Love declined to comment via email at the time, as did Marc Lotter, a top Pence spokesperson who has since left 1600 Pennsylvania Avenue to promote the Trump-Pence agenda on the political circuit, headlining a GOP fundraiser last week in Buffalo, New York.
Neither the president’s nor the vice president’s public schedules at the time indicated that they were in attendance at the September meeting. But Porter subsequently sent an email to supporters with photographic evidence to the contrary, Right Wing Watch reported.
“The Vice President not only stated that he ‘loves’ the pro-life Heartbeat Bill, he promised to put the letter calling for its passage directly on President Trump’s desk,” Porter said in the email.
Reached by phone Tuesday about the discrepancy, Lotter directed Rewire to a spokesperson in Pence’s office. The spokesperson described what occurred as a staff-level meeting with policy aides. “My understanding is the group ran into the Vice President in the West Wing after a different meeting and he said hello,” the spokesperson said in an email.
The spokesperson ignored Rewire‘s repeated inquiries: Did Pence make any commitments to throwing the power of the White House behind the total abortion ban in Congress—or behind executive action from Trump?
The White House’s latest response, or lack thereof, builds on officials’ pattern of obfuscating meetings with anti-choice leaders. Lotter in July flat-out refused to answer questions about a “private meeting” between Pence and anti-choice advocates, even though some of the advocates—Susan B. Anthony List President Marjorie Dannenfelser and Concerned Women for America CEO and President Penny Young Nance—were clearly identifiable in a photo posted from the vice president’s official Twitter account. A third attendee, March for Life President Jeanne Mancini, retweeted Pence with her gratitude.
Rewire on Tuesday attempted to ask Porter questions about the White House meeting and the politics of the ban, but when reached by phone, she said she couldn’t talk. She agreed to take questions via email but has not yet answered them.
The last word here goes to a person who can comment on the total abortion ban from her lived experiences.
“When the six-week ban was introduced in Ohio, I shared my story of when I had my abortion. I didn’t even know I was pregnant at six weeks,” Mallory McMaster, a storyteller for We Testify project to end abortion stigma, told Rewire.
“I was pretty lucky. There were no barriers keeping me from getting my abortion,” she said. “If we ban abortion at six weeks or when there’s a detectable heartbeat, which might even be before six weeks as ultrasound technology keeps getting better, people are going to lose access to abortion completely, and the impact it’ll have on our lives is disastrous for our society, for our economy, [and] for our economic and educational well-being.”