The "Fetal Pain" Bill Is Back, and It's Worse Than Ever

This week, Congress is poised to pass a tweaked "Pain-Capable Unborn Child Protection Act," with new language that appeases all GOP’ers. And signals very disturbing news for rape survivors.
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When I went to the March for Life event in D.C this year, I expected to watch hundreds of thousands of abortion opponents cheering as Congress voted a federal 20-week abortion ban through the House. Instead, I spent the afternoon of the 42nd anniversary of Roe v. Wade in the entryway in front of North Carolina Representative Renee Ellmer’s office, as a few dozen betrayed activists expressed their frustration and disbelief that the bill had been pulled from the dockets.

It’s taken over three months and furious negotiations, but the federal “Pain-Capable Unborn Child Protection Act” has finally made it through its intra-party deadlock, and according to news reports should pass the House on or around Wednesday, May 13. This new vote is timed to be completed on the two-year anniversary of the murder conviction of Kermit Gosnell, a doctor who peformed illegal abortions and in some cases infanticide in his clinic in Philadelphia.

It was abundantly clear within recent weeks that a final bill that almost all abortion opponents could agree on was about to debut. While a handful of activists representing a small faction of most vocal, extreme wing had been pushing party leaders to schedule a vote for months, including allowing themselves to be arrested while praying in the doorway of Speaker of the House John Boehner (R – Ohio) in late March, most of the mainstream advocacy groups remained silent about the ban. Suddenly, on April 23, most major anti-abortion action groups began urging lawmakers to bring back the bill.

A joint press release from Susan B. Anthony List, Concerned Women For America, Family Research Council, March for Life, Silent No More Awareness Campaign, National Pro-life Religious Council, Americans United for Life, and Students for Life of America called on the Republican party to “make good on its campaign promises of passing the Pain-Capable Unborn Child Protection Act,” according to the Washington Free Beacon, a public call to action so many politically savvy players would be unlikely to make if they weren’t abundantly certain that they would get the answer they wanted shortly. Susan B. Anthony List, who is actively committed to making the 20-week abortion ban a key 2016 campaign issue, ramped up the pressure with another press release issued on May 5, demanding a vote on the Gosnell anniversary.

Now, Republican lawmakers have complied. House Majority Leader Kevin McCarthy (R – Calif.) announced on May 8 that there would be a vote the following week, and Rep. Chris Smith (R – N.J.) praised the House’s “truly unified pro-life conference” in the Weekly Standard.

It’s the “unified” part that was no doubt so difficult to come to. The original schism over the first version of the bill was caused by Rep. Ellmers and other moderate Republicans who were opposed to forcing a survivor of sexual assault to report the attack to the police in order to obtain an abortion, saying it could retraumatize them. Those who supported the reporting requirement claimed it was necessary to ensure no one misused the rape exception and had the added benefit of putting “perpetrators” in jail. The impasse between the two sides forced lawmakers to put the bill on ice and find a way to make everyone happy.

Now, they believe they have the answer, with a new requirement that an adult sexual assault survivor does not have to report the crime (a minor, however, still will) as long as a few rules are followed. LifeNews explains that, “According to pro-life sources who spoke with LifeNews, the rape exception language will be airtight by requiring some sort of documented medical treatment or counseling 48 hours prior to the abortion so the mother has a chance to weigh abortion alternatives. In addition, such treatment or counseling must be provided by physicians or counselors that are outside of the abortion industry. In cases of rape or incest of a minor, the abuse must first be reported to either social service or law enforcement.” In addition, “The woman is also empowered with a right to sue if the law is not followed.”

The new language is alarming in a number of ways. First, by changing the stance on reporting to police, anti-abortion activists make it clear that issue was always primarily that they believed pregnant people would lie about sexual assault to get an abortion. Just as disturbing is that a person who was sexually assaulted should now be required to sit through a counseling session involving “alternatives” and then wait an additional 48 hours before having the procedure. Even without abortion alternatives information being forced upon her, the idea that potentially unwanted counseling would be a hoop a survivor of sexual assault must jump through in order to “earn” an abortion is deplorable.

Even if a rape survivor sits through a mandatory counseling session in order to get an abortion, or happens to have documentation from a “medical treatment” relating to the incident, the language also appears likely to move the onus for verification (and potential legal issues should any of the information be wrong or incomplete) onto the provider. The end result of these new rules, as anti-abortion activist Jill Stanek notes, is to make medical professionals unwilling to offer an abortion after 20 weeks even if that person was impregnated due to sexual assault and technically should be allowed to obtain one. “The new language will make committing late-term abortions with exceptions very unappealing to the slime who would commit them in the first place,” writes Stanek.

While the rules may seem cruel to many, especially since 61 percent of Americans believe that a person should have the right to an abortion after 20 weeks if the pregnancy was a result of sexual assault or incest, it’s unlikely to ever be put into action. President Barack Obama stated in January that he would veto a bill if it comes to his desk, making the entire legislation nothing but a campaign-cycle ploy. The Republican party believes that with this new version, they can convince their anti-abortion activist wing that they are committed to their cause in order to engage them for another round of grassroots voter outreach for 2016. Meanwhile, they will tell the general public they always supported exceptions for rape and incest.

If it works, the GOP will manage to have their cake and eat it too—probably while sitting in the White House.

Robin Marty is a freelance writer and speaker and the author of CROW AFTER ROE, a book outlining the blueprint to end abortion one red state at a time. Marty’s articles have appeared at Cosmopolitan.com, Politico, The Guardian, and other publications, and she is a Women’s Media Center SheSource Expert on Reproductive Rights and Politics. Follow her: @robinmarty
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