House Judiciary Committee Considers Bill Banning Late-Term Abortions

Billy House

The House Judiciary Committee plans to consider a bill Wednesday banning late-term abortions nationwide, and its sponsor says the murder convictions last month of Philadelphia abortion doctor Kermit Gosnell are serving as a “teachable moment” on the issue.

Rep. Trent Franks’s Pain-Capable Unborn Child Protection Act is actually an expanded version of legislation the Arizona Republican sponsored last session that failed under an expedited process to get enough votes on the House floor to pass. That version had been geared solely to prohibiting abortions after 20 weeks of pregnancy in the District of Columbia.

But last week, Franks and Judiciary’s Subcommittee on the Constitution and Civil Justice, which he chairs, rewrote the measure to expand its reach beyond the nation’s capital city and advanced it to the full committee in a 6-4 party-line vote.

The bill’s broadening comes in the wake of the Gosnell trial, which Franks and others say has prompted a reconsideration of the legality of late-term abortions performed on fetuses who are capable of being born alive. Gosnell was convicted last month of three counts of first-degree murder in the deaths of three babies whom prosecutors say were delivered alive and subsequently killed.

Franks’s bill—which includes exemptions for a medical emergency endangering the life of the woman—has 146 cosponsors. Sen. Mike Lee, R-Utah, has introduced a companion bill in the upper chamber, but that remains titled The District of Columbia Pain-Capable Unborn Child Protection Act. The text of Franks’s bill explains that Congress has a compelling government interest in protecting the lives of unborn children “from the stage at which substantial medical evidence indicates they are capable of feeling pain.” It goes on to argue that Congress has the authority to extend such protection under the Supreme Court’s commerce-cause precedents and under the Constitution’s equal-protection and due-process clauses.

In fact, several other states have enacted their own “fetal pain” bills, and, last month, the 9th Circuit Court of Appeals struck down Arizona’s ban on abortions after 20 weeks. But that ruling is not binding on all states. Debate remains fierce on where the constitutional line should be drawn in terms of defining a fetus’s point of viability and its ability to feel pain—and thus at what point a state can impose an abortion ban.

Last week, Franks pointed to the Gosnell case and said, “I pray we use this as a ‘teachable moment,’ in the words of President Obama, and can agree that, at the very least, we are better than dismembering babies who can feel every excruciating moment.”

The version of Franks’s bill focusing on the District of Columbia got 220 votes last year when it reached the House floor, against 154 votes opposed, with 57 members either not voting or voting “present.”

But because it was brought up in an expedited process normally reserved for noncontroversial bills—under suspension of the rules—it required the support of two-thirds of those voting to pass, and it fell short of that. In what form Franks’s bill might reach the floor this year, whether in regular order or under suspension, remains uncertain.

Doug Heye, a spokesman for Majority Leader Eric Cantor, R-Va., said Monday that the bill—following its expected advancement by the Judiciary Committee—"could" be brought to the floor under a rule. That would mean it would only need a simple majority to pass.