On July 18, 2012, members of the U.S. Judiciary House Committee voted to pass a strict ban prohibiting abortions 20 weeks post-fertilization in the District of Columbia, with no exceptions other than the risk of death or irreversible physical impairment to a major bodily function of the pregnant woman.[1] Introduced in January 2012 by Representative Trent Franks (R-A.Z.),the Pain-Capable Unborn Child Protection Act (H.R. 3808) is predicated on the dubious notion that fetuses can feel pain at 20 weeks.[2] D.C. is the latest in a wave of unconstitutional 20 week abortion restrictions that started in Nebraska in 2010.[3] H.R. 3808 moved on to U.S. House of Representatives as the first bill ever introduced in Congress to ban abortion 20 weeks post-fertilization,[4] but failed to pass on July 31, 2012.

 

With the support of the anti-choice National Right to Life Committee (NLRC)and more than 200 congressional co-sponsors,[5] H.R.3808 passed the Republican dominated House Judiciary Committee with a vote of 18-14.[6] The majority of committee members blocked all amendments to the bill proposed by Democrats,[7] who unanimously voted against the bill.[8] No exceptions were provided for cases of rape or incest, and proponents of the bill even blocked an amendment allowing pregnant women with cancer to receive life-saving treatment if treatment was incompatible with their pregnancy.[9]

 

During a mark-up of the bill, Rep. Trent Franks stated the purpose of H.R.3808 is “to protect children from being torturously dismembered while they are fully capable of feeling pain.”[10] A laundry list of “legislative findings” within the bill acts as evidence for the existence of ‘fetal pain.’[11] Rep. Franks declared scientific consensus on ‘fetal pain’ is “almost universal,” but many in the scientific and medical community disagree.[12] In their recent paper in The Journal of Law, Medicine & Ethics, Glenn Cohen of Harvard Law School and Sadath Sayeed of Harvard Medical School concluded there is no conclusive evidence of fetal pain at 20 weeks.[13]  In addition, the American College of Gynecologists and Obstetricians stated it “knows of no legitimate scientific information that supports the statement that a fetus feels pain.”[14]

 

H.R. 3808 follows a series of unconstitutional abortion bills which were made laws and stand unchallenged. The Guttmacher Institute reports a total of 19 states have unconstitutional abortion policies restricting abortion past a certain gestational period, usually 20 or 24 weeks. Six of these state policies are based on the assertion that fetuses can feel pain at 20 weeks.[15] The Guttmacher Institute writes these laws are clearly unconstitutional, violating U.S. Supreme Court decisions affirming that states may not prohibit abortions necessary to preserve the health of the woman, as defined only by the woman’s physician.[16]

 

The bill provoked many D.C. residents who countered that Rep. Franks had no authority to impose laws on D.C. In May, fifty D.C. protestors organized by D.C. Vote and Planned Parenthood went to Rep. Franks’ office and dropped off plastic rats, pictures of potholes, and “other representations of municipal problems” they thought “Mayor Franks” should address if he was going to start writing laws on behalf of D.C. residents. [17] To make matters worse, Del. Eleanor Holmes Norton (D), the district’s sole congressional representative, was denied her request to speak as a witness in a House subcommittee hearing in May by Republicans.[18]

 

Once the bill passed, Del. Norton declared, “we are not puppets to be used by the right-to-life forces, who are parading this same bill through the states to work up a head of steam against Roe v. Wade.”[19] Opponents believe the blatant unconstitutionality of this bill and those similar is likely “by design.”[20] The creators of these laws purposefully invite legal challenges with the hope of advancing to the Supreme Court in an attempt to undermine Roe v. Wade.

 

On July 31, the House of Representatives failed to pass the bill. The bill won a majority of the vote, 220 to 154, but because it was considered under “suspension of the rules,” it needed a two-thirds majority, or 248 votes, to pass.[21] In his open display of anger, Rep. Franks shouted on the House floor “We will stand for a commitment to protect little babies that have no other people to protect them. By the grace of God, we're going to do that!”[22] Fellow anti-abortion Representative Chris Smith (R-N.J.) also added that when women have abortions after 20 weeks, “many times a little face may come out and stare back at you.”[23]

 

Had H.R. 3803 received a two-thirds majority vote, it is unlikely it would have passed the Democratic-controlled Senate. Still, the bill may very well be attached to other legislation for passage.[24]

 

 

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