On Pain, Viability, and Votes

On the agenda this week: two bills addressing mid- and late-term abortions. One bill is federal, and it fell short on a procedural vote in the U.S. Senate. The other bill is getting its hearing this week (January 31, 10:00 a.m.) before a New Hampshire House committee, a year after a similar bill was tabled in the House.

The opposition by abortion advocates is predictable, as is the split among pro-lifers.

Federal: the “Pain-Capable” Bill

The U.S. Senate failed this week to advance a so-called “Pain-Capable” bill, which would have limited abortions after the fifth month of pregnancy, the point at which preborn children can feel pain. As if the very title of the bill weren’t enough to calm fears that it might actually confer personhood on anyone (it was written to be merely a limitation on abortion), the bill contained exceptions for children conceived through rape and incest.

The point of those exceptions is anyone’s guess. They provided no tactical advantage of which I’m aware, and they infuriated rape survivors and their children.

We were treated to the disedifying spectacle of the Democratic Senate leader high-fiving a colleague after the vote. They weren’t celebrating the defeat of an exceptions bill. Way to go, guys. Team Gosnell prevails again.

Here are two different views of the Pain-Capable Bill, offered by women whose experiences give them a perspective that I’m sure most Senators lack. These are taken from public posts on social media.

Darlene Pawlik at TheDarlingPrincess.com, “The Law is a Teacher” (excerpt):

This bill teaches that children over 20 weeks gestation deserve protection from the horrific pain of having arms and legs torn off or their heads and chests crushed at the hands of abortionists. It further teaches that, a similar child who’s unfortunate enough to be the second victim of rape does not deserve to be protected form that same excruciating death.

…It is very important to note that perhaps, the one person, the mom, who could redeem the situation would be left with the guilt of committing an atrocity against another innocent victim. This could set her up for post traumatic stress responses for the rest of her life.

…I was not only conceived by a violent rape, but my first child was born as a result of sex trafficking. I am the target of this kind of legislation….

Of course, I’ll ask you to remove the exceptions. These exceptions undermine to premise of the bill. They are discriminatory and unjust. No child should receive the death sentence for the crime of their father.

Catherine Adair on Facebook:

I find it really hard to talk about the defeat of the 20-week abortion bill by Senate Democrats. Every time I think about it, I am right back in the abortion clinic, staring at a jar filled with the severed arms and legs of a baby who just moments before had been ripped apart in [its] mother’s womb. I am right back to that place where I told mothers that the doctor was going to “gently extract the contents of the uterus.” Women in their 23rd week of pregnancy were lied to and told it was a simple “procedure.”

Nobody told them that they and their baby would be in agony as the doctor used forceps and sharp instruments to dismember their child, pulling and tugging until the baby was ripped apart and he could pull the body out, piece by piece.

…To see Senate Democrats high-fiving each other on the Senate floor truly left me sickened….What kind of a society allows such barbaric killing? What kind of a society allows late-term abortion to be used as a way to generate profits for a body parts selling industry? Have people lost all sense of their humanity?

Even writing this I can smell the sick, horrifying smell of the abortion procedure room. It is something that will never leave me. I want to run and hide and pretend like this barbarism isn’t happening. I truly can’t bear the horror. But I have to say something, if only in memory of the thousands of babies whose blood I have on my hands.

Dear God, I implore you to awaken those who are blind, those who helped to defeat this bill, and those who voted against it. Please open their eyes. Please give them back their humanity. Please have mercy on us.

In New Hampshire: the Viable Fetus Protection Act

Rep. Keith Murphy (R-Bedford) is leading a team of sponsors on HB 1680, to restrict abortions after viability. Restrict, not ban: it has exceptions (though none for rape and incest). Far from undermining Roe, it is consistent with Roe’s holding that the state may assert an interest in prenatal life in the latter stages of pregnancy. New Hampshire is a place of abortion extremism, where unregulated providers can do the deed anytime until the preborn child comes to term. HB 1680 is an attempt to change that, in a modest way.

The bill does not pretend to push against any constitutional limits. It doesn’t pretend to be about personhood. It is a straightforward bid “to assert a compelling state interest in protecting the lives of viable unborn fetuses.” It even leaves the determination of viability to the “treating physician,” meaning the abortion provider.

I support the bill as a step toward loosening the grip of abortion absolutists on my state’s public policy, just as I supported Murphy’s HB 578 last year.

New Hampshire Right to Life takes a different view.

This bill prohibits post-viability abortions (which NHRTL supports) but it also includes exceptions for the [unrestrained] health of the mother; for Twin To Twin Transfer (TTS) syndrome; and for Fetal anomalies incompatible with life. NHRTL cannot support enacting law that explicitly excludes any class of humans from legal protection. [brackets and parentheses in original]

I’m going to go out on a limb here and speculate that if – if – HB 1680 is defeated or derailed, abortion advocates will be high-fiving in Reps Hall just as they did in the U.S. Capitol the other day. And once again, they won’t be high-fiving over the defeat of “exceptions.”


Do Exceptions Help, Politically?

A Pain-Capable Unborn Child Protection Act has passed the U.S. House and is on its way to the U.S. Senate. It would restrict abortions after 20 weeks of pregnancy, a point at which there is evidence that the preborn child feels pain. That’s “restrict,” not “prevent.” The bill carries a rape-and-incest exception.

The ability to feel pain is not a function of the criminal activity of one’s biological father, so the exception undermines the whole science-is-on-our-side defense of Pain-Capable. Darlene Pawlik expands on the problematic nature of the exception in “I’m Pain-Capable, How ’bout You?

I appreciate the good intentions in this attempt to protect at least some children, and I’m not going to work for the defeat of a candidate solely on the basis of supporting Pain-Capable in its current form. I just have to wonder why the exception is in there. From a pragmatic point of view, does it gain any votes over a no-exceptions bill?

I don’t know, but I can recall a situation in New Hampshire last year when one abortion bill had no rape-and-incest exception while two others did. Was there a big difference in the results among those three votes? Not really. From my March 15, 2016 post:

There were three bills [in NH in 2016] to restrict mid- and late-term abortions. One of them, HB 1328, would have instituted a 20-week limit with an exception for abortions following rape or incest. The other bills would have limited abortions at viability (HB 1625) and at the point where the preborn child can feel pain (HB 1636). Was there any tactical advantage to including exceptions in one of the bills?

Not that I could see. Only seven representatives voted FOR the bill with exceptions and AGAINST the other two mid- and late-term bills. On the other hand, twelve representatives did the opposite, opposing the exceptions bill while supporting the HB 1625 and HB 1636.

All three of those bills failed, although HB 1625 – to prohibit abortion after viability, without a rape-and-incest exception – lost by only three votes.

Congressman Steve Scalise, the Republican Majority Whip, has acknowledged that passage of the Pain-Capable Act in Congress took some effort. I expect the same will be true in the Senate.

Whose Senate vote will be granted or withheld on the basis of exceptions language? Is there any tactical advantage to the exceptions? I don’t know, but what I saw in Concord in 2016 makes me wonder.

Uncertain future for 4 N.H. bills limiting mid-term & late-term abortions

In New Hampshire, abortion is legal throughout all nine months of pregnancy. The House will vote on four bills next week that attempt to change that. None is likely to pass, coming before the same legislative body that recently rejected a bill to protect children born alive after attempted abortion.

The bills, and the recommendations from the House Judiciary Committee:

  • HB 1328, limiting pregnancy terminations to pregnancies of 20 weeks or less. Committee vote: 11-9 for “inexpedient to legislate” (ITL).
  • HB 1623-FN, prohibiting an abortion based on genetic abnormalities. Committee vote: 14-5 ITL.
  • HB 1625-FN, relative to banning abortion after viability. Committee vote: ought to pass (OTP) with amendment, 9-8.
  • HB 1636-FN, prohibiting abortions once an unborn child can feel pain. The bill will go to the full House without recommendation, after the committee tied 9-9 on an OTP motion.

The House will convene at 9 a.m. on March 9, and  will probably meet on March 10 as well due to the heavy load of bills awaiting action.

From the House Calendar: the committee reports on each bill

These reports are from House Calendar #14, beginning on page 58. These summaries, called “blurbs,” are the only information some reps will have before voting on these bills, unless they hear from constituents. Any reference to abortion statistics in these reports is debatable, since New Hampshire does not mandate abortion reporting. Worth noting: Rep. Hagan, who wrote the report supporting HB 1328, is a physician.

HB 1328, restricting post-20-week abortions

Rep. Timothy Horrigan for the Majority of Judiciary, Inexpedient to Legislate: This bill as introduced would have banned all abortions after 20 weeks of pregnancy. It would have eliminated the option for New Hampshire women to legally terminate a pregnancy after the middle of the second trimester. This represents unwarranted government interference with women’s reproductive decisions and with the practice of medicine. There are also numerous legal and medical flaws with this bill. It threatens women’s health by banning abortion even when serious medical conditions jeopardize a woman’s health. While the bill does have very narrow exceptions, they are inadequate to protect women’s health and safety. For example, women with cancer, diabetes, high blood pressure, and epilepsy or other seizure disorders may face dangerous complications at or past week 20 that can put their health in serious jeopardy. Abortion after 20 weeks in pregnancy is extremely rare: only one percent of women have abortions after 20 weeks. When it does happen, it is typically because of a heartbreaking and
tragic situation where a woman and her doctor need every medical option available. These very often involve rare, severe fetal anomalies which are not detectable before 20 weeks.

Rep. Joseph Hagan for the Minority of Judiciary, Ought to Pass: Roe v. Wade stated that subsequent to viability, the state, in promoting its interest in human life, may, if it chooses, regulate and even proscribe (ban) abortion. This bill would ban abortions after viability except when life and health of the mother is at risk or condition of the fetus demands removal for the uterus. Over the last decade, according to the Gallup Poll, greater than 80% of the American people agree that abortion should be banned after viability. This bill is constitutional, compassionate and supported by the majority of the American people.

HB 1623, prohibiting abortion for genetic abnormalities

Rep. Paul Berch for the Majority of Judiciary, Inexpedient to Legislate: This bill seeks to ban abortions based upon prenatal genetic testing. The committee understood the difficult decisions when women and their partners are confronted with a prenatal diagnosis of serious genetic defects. Understanding that women make different decisions based upon their own values, abilities and wisdom, the bipartisan majority of the committee felt it was the right of New Hampshire women to make these difficult decisions themselves, in consultation with medical professionals, rather than by politicians. By making doctors into criminals in certain circumstances, there was a concern that women would be reluctant to have full and candid conversations, jeopardizing doctor-patient relationships. The committee felt that some of the provisions of this bill were of doubtful constitutionality, and other provisions would not work in real life circumstances.

Rep. Kurt Wuelper for the Minority of Judiciary, Ought to Pass: The minority believes that a baby should not be aborted just because she has a genetic marker for an inherited abnormality. Children who carry markers for Down syndrome should be allowed to grow and become the person they can, not killed by abortion as roughly 90% of those so diagnosed are today. We believe every child has the inalienable right to life and aborting them because of a genetic screening is the ultimate discrimination and should be illegal.

HB 1625, ban on post-viability abortions

Rep. Kurt Wuelper for the Majority of Judiciary, Ought to Pass with Amendment: This bill as amended prohibits abortions on babies after viability, except when necessary to save the life of the mother or to protect her from “serious risk of substantial and irreversible physical impairment of major bodily function.” This language has been vetted through the US Supreme Court and has been in effect in other states for many years. Ever since Roe v. Wade was decided, states have been allowed to prohibit these late term abortions, and at least 17 other states already do. The majority believes that babies who can live outside the mother’s womb should be given every opportunity to do so. This bill takes great care to protect the mother’s well-being and, in case of criminal proceedings, her anonymity, while doing all we can to give babies the chance to live the lives of which they are capable.

Rep. David Woodbury for the Minority of Judiciary, Inexpedient to Legislate: This bill, as amended, seeks to limit and criminalize post-viability abortion, notwithstanding that such abortions are not performed in this state, at least presently. The main defects in this bill are that a second physician’s opinion must be obtained if such an abortion is to be performed to protect the life or health of the mother. Such second physician may not be available or willing, with tragic results to mother or child. Secondly, there are onerous and intrusive records to be kept for no discernable reason. Rather than legislate the practice of medicine, it is better to leave the practice of medicine to those best able to do it.

HB 1636, the pain-capable act (tie vote, headed to House floor without recommendation)

Statement in support of Ought to Pass, by Rep. Kurt Wuelper:
This bill prohibits abortions after the child can feel pain. Per the US Supreme Court, states may regulate procedures when the medical community is in doubt as they are regarding when the pre-born can feel pain. Given the possibility that babies could suffer severe pain at this stage of life we believe the state should err on the side of protecting them from it. Knowing that anesthesia is common in surgery performed on babies in the womb, we believe that those babies who might experience pain even more than born people should be protected from abortion. Since medical research has indicated that babies may feel pain as early as 20 weeks of age, this bill prohibits abortions after that age. Despite the fact similar laws in the Ninth Circuit have been ruled unconstitutional, we believe that the US Supreme Court might accept a new standard, such as this one, for when states can prohibit abortion if a federal appeals court should do so.

Statement in support of Inexpedient to Legislate, by Rep. Paul Berch: This bill seeks to ban abortions at or after 20 weeks except in the case of a medical emergency. It seeks to justify this restriction based upon a claim that a fetus can feel pain at that point in time, a belief disputed by many in the medical profession. The committee heard testimony that this bill is identical in all important respects to similar laws that have been held to be unconstitutional, including a decision by the United States Supreme Court on January 13, 2014 not to lift a block imposed by the Ninth Circuit of a similar law. Not only did the Supreme Court refuse to allow this kind of statute to be enforced, it also refused to reconsider Roe v. Wade and similar decisions post-Wade requiring “viability” and not gestational age to be the only critical factor in determining constitutionality of this kind of legislation. Other federal and state courts have similarly struck down 20 week bans. Testimony was also received that this bill’s reporting requirements impermissibly invade the privacy rights of women; that the health exception as drafted has constitutional issues; and that women faced with the serious and often dangerous complications of late term problems need the best health care possible from their medical providers.

The March 9 House session will be livestreamed. 

One step forward, two steps back: this week in other states

State House, Concord NH
What’s going on under other State House domes?

When it comes to life-issue legislation – and bills on most other topics, for that matter – the Granite State seldom breaks new ground. Watch what’s going on in other states, and you’ll have a good idea of what’s coming up in Concord. Here are a few of this week’s notable items.

NEBRASKA: On May 27, legislators repealed the state’s death penalty. They overrode Governor Pete Ricketts’s veto by a 30-19 vote. (Nebraska has a unicameral legislature.) From the New York Times coverage of the vote: “Opponents of the death penalty here were able to build a coalition that spanned the ideological spectrum by winning the support of Republican legislators who said they believed capital punishment was inefficient, expensive and out of place with their party’s values, as well as that of lawmakers who cited religious or moral reasons for supporting the repeal. Nebraska joins 18 other states and Washington, D.C., in banning the death penalty.”

New Hampshire’s last attempt to repeal the death penalty fell short of passage but gained surprising support from two prominent legislators who had previously been death penalty advocates. One heart at a time …

IDAHO: The federal Ninth Circuit Court of Appeals may or may not be the Circuit with the most decisions later overturned by the Supreme Court, depending on your source, but here’s the latest from those judges for what it’s worth. Today, they overturned Idaho’s Pain-Capable Unborn Child Protection Act. Grounds: parts are “unconstitutionally vague,” create an “undue burden,” and “it categorically bans some abortions before viability.” Help yourself to the whole decision.

CALIFORNIA: On May 26, a bill to compel pro-life pregnancy care centers to promote abortions was passed by the California Assembly. It now goes to the state senate. Apparently, abortion providers are having so much trouble appealing to women that they need to enlist privately-funded pregnancy care centers to help with publicity. See coverage in Breitbart and LifeNews.

Pending hearings in MASSACHUSETTS: Closer to home, Massachusetts Citizens for Life says two interesting bills will have hearings at the State House in Boston on June 2. One would lower the age of consent for abortion to 16, eliminating use of the state’s parental notification statute for minors aged 16 and above. The other, strongly supported by MCFL, would amend the definition of “clinic” in the general laws and would require inspection and licensing of non-hospital abortion facilities.

I recall writing two years ago about the statement by a New Hampshire Health and Human Services official that “there is no such thing as an abortion clinic” in our state. Definitions matter. It will be interesting to see how the Massachusetts bill fares.



The “exception”-al Pain-Capable Act

visitthecapitol.gov photo
visitthecapitol.gov photo

I just sent an email to my Member of Congress, asking him to support a piece of legislation that will probably come up in Washington late this afternoon: the Pain-Capable Unborn Child Protection Act, H.R. 36, restricting abortions after 20 weeks of pregnancy. It’s as flawed a life-issue bill as I’ll see this year in either Washington or Concord. Still, I hope it passes. And I definitely want to see who-votes-how. [Update, 5:45 p.m.: the measure passed, 242-184.]

In the absence of a clean up-or-down vote on late-term abortion, this bill is the next best thing. Don’t go looking in this bill for an affirmation of a right to life from conception to natural death; it ain’t there. This bill proposes restrictions on mid- and late-term abortions, not a ban. It doesn’t confer “personhood” and it doesn’t even apply to preborn children in the first half of pregnancy. It may or may not be good news to you that the bill poses no threat to Roe v. Wade. And still, I asked my congressman to vote Yea.

Dr. Charmaine Yoest of Americans United for Life, speaking as a no-holds-barred supporter of the legislation:

“Limiting abortion at 5 months of pregnancy, as an unborn child becomes able to live outside the womb and as the abortion procedure becomes even more dangerous for women, is a commonsense law long overdue….[I]t deals directly with the ugly reality of abortion, which hurts both mother and child who are exposed to an industry willing to harm people for profit.”

Not so coincidentally, today is the second anniversary of the conviction of noted Philadelphia butcher Kermit Gosnell. Supporters of Pain-Capable see passage as a fitting way to mark the date. Earlier this year, the bill was scheduled for a vote on the anniversary of the Roe v. Wade decision, before it was sidetracked. (Nurse Jill Stanek has done all she can to make House Speaker John Boehner bring back the bill. Bound4Life has an interesting interview with her on the subject.)

A good – nay, great – provision in the bill: it calls on anyone terminating a post-20-week pregnancy to do so in a manner which “in reasonable medical judgment provides the best opportunity for the unborn child to survive,” consistent with the safety of the mother. No snipping, doctors.

And then there are a couple of sticky points that won’t go away.

Finer minds than mine came up with the title, which acknowledges how squeamish many people are about “terminating” a post-20-week preborn child who “reacts to stimuli that would be recognized as painful if applied to an adult human.” That’s from the text of the bill, in the Findings section. Great. Imposing pain except for therapeutic purposes (can I pop that dislocated shoulder back into place for you?) is to be avoided. The danger comes when that leads to the conclusion that anesthetizing the intended victim would be some kind of solution. Would that make abortion more palatable? How about anesthetizing people being subjected to forced sterilization or euthanasia? Would that make the procedures somehow all right, as long as no one feels pain? No. I recognize of course that the bill’s sponsors have no intention of going down that road.

There is also … wait for it … a rape-and-incest exception. The hashtag for the Twitterfest on this bill is #theyfeelpain. I almost want to counter with #theyfeelpaintoobutnevermind. The redoubtable Abby Johnson is simply using #NoExceptions.

Still, I’ve supported policies with such exceptions before, notably the Hyde Amendment. Did you realize that Hyde only restricts the use of federal Health and Human Services funds for abortion in certain government programs? Other federal funds are unaffected. Did you know that it’s not automatic, but has to be renewed each budget cycle? That it has those exceptions I mentioned? And still, I support it and I even want to see it expanded to cover more federal departments.

I’ve asked Congressman Guinta to support H.R. 36. He knows I’m watching.  How about you?