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Senate Democrats Introduce Bill to Strike Down State Abortion Laws

Far-reaching measure would invalidate law used to convict late-term abortionist Kermit Gosnell.

12:00 PM, Nov 20, 2013 • By JOHN MCCORMACK
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Is performing an abortion no different than pulling a tooth? The idea that there isn't a difference is the basis of a new federal bill that would wipe hundreds of state abortion laws off the books--striking down everything from late-term abortion limits to health and safety regulations in many states.


The Women's Health Protection Act, introduced by Democratic Connecticut senator Richard Blumenthal, would even invalidate a law used to convict Philadelphia abortionist Kermit Gosnell earlier this year, and it could potentially force taxpayers across the country to directly fund elective abortions for Medicaid recipients.

"The basic principle is that there can be no restriction that is not also imposed on a medically comparable procedure. If they single out abortion or reproductive rights, it's going to fall foul," Blumenthal said at a November 13 press conference. Blumenthal told THE WEEKLY STANDARD following his remarks that it's "for doctors to decide" what counts as a "medically comparable" procedure.

Blumenthal specifically condemned health and safety regulations requiring that an abortion “doctor have admitting privileges" at a hospital "or that the hallways in a clinic be a certain width, which has no relation to health or safety."

Top officials at leading abortion rights organizations joined Blumenthal on November 13 in denouncing such health and safety regulations, which states like Texas and Pennsylvania passed in response to the deaths of women in abortion clinics like the one run by Gosnell in Philadelphia.

Alexis McGill Johnson, chair of the Planned Parenthood Federation of America, likened health and safety abortion regulations to Jim Crow laws.

"As a black woman who was raised in the backdrop of civil rights movement and the woman's movement, when I see politicians roll back access to basic health care for women, what I’m seeing really are the poll taxes and literacy tests that existed more than fifty years ago," Johnson said at the press conference.

"Women can make our own decisions freely and privately with our families and our gods," said Ilyse Hogue, president of NARAL. "This is mainstream."

In reality, the Democrats' new abortion bill is anything but mainstream. It would invalidate state laws passed in more than a dozen states, most recently in Texas, that would ban most abortions after the fifth month of pregnancy--laws that garner strong support in national polling. It would abolish laws requiring a 24-hour waiting period prior to obtaining an abortion--measures that Americans back nationally by a 41-point margin, according to Gallup. It would strike down laws requiring that abortionists inform women of alternatives to abortion, measures that Americans support by a 77-point margin, according to Gallup.

In fact, the Democrats' new abortion bill is so radical it would lead to the invalidation of the Pennsylvania Abortion Control Act--a law, which has been on the books since 1989, that was used to convict Philadelphia abortionist Kermit Gosnell earlier this year. In addition to being convicted on three counts of murder for killing infants after they had been born, Gosnell was convicted under the Abortion Control Act for successfully killing 21 infants in utero past Pennsylvania’s gestational limit on abortion (a limit that's just two weeks later in pregnancy than the limit established recently by Texas).

Douglas Johnson of the National Right to Life Committee told THE WEEKLY STANDARD in an email that Blumenthal's bill "would invalidate nearly every provision of the Pennsylvania Abortion Control Act, including the prohibition on performing abortion after 24 weeks except in acute medical circumstances, which was used to prosecute Gosnell.  Abortion until birth would be explicitly protected, as long as a single physician asserts that it would protect 'health,' including emotional health."

The Pennsylvania Abortion Control Act's ban on late-term abortions has an exception for when the mother's life is endangered or to prevent the "substantial and irreversible impairment of a major bodily function." NARAL opposes the law because it doesn't let abortion doctors determine whether or not a baby is viable and because the law's "health exception is dangerously narrow." That exception hasn't been ruled to be too narrow by any court in the country, but it would be if Blumenthal's bill passed. 

Blumenthal's bill includes a clause that explicitly instructs judges to "liberally" interpret the law: "In interpreting the provisions of this Act, a court shall liberally construe such provisions to effectuate the purposes of the Act." 

And Blumenthal admitted at his November 13 press conference that his bill would require a a "health" exception for post-viability abortions that doesn't distinguish between physical or psychological health: 

THE WEEKLY STANDARD: The bill says that there cannot be bans post-viability if they don't have an exception for the life or health [of the mother].Does health include psychological and emotional health, as Doe v. Bolton did, Roe's companion case--

SEN. RICHARD BLUMENTHAL: It would include--

TWS: What is the defintion of health. Physical? Or is it also emotional and psychological?

BLUMENTHAL: These decisions will be made by doctors and patients, doctors and women. And they can make it for medically necessary reasons.

TWS: And you can't say whether it's physical or also psychological?

BLUMENTHAL: It doesn't distinguish.

The bill could also potentially force all 50 states to directly pay for elective abortions for Medicaid recipients because it bans measures that "directly or indirectly increase the cost of providing abortion services or the cost for obtaining abortion services." (Only four states have passed laws to fund Medicaid abortions, while 13 other states have been ordered to do so by their supreme courts.)

Blumenthal claims that this provision would not force state governments to fund abortion, and Walter Dellinger, who served as Bill Clinton's acting U.S. Solicitor General and helped draft the Women's Health Protection Act, says the same thing. "Our understanding is that Medicaid is a form of insurance and thus Medicaid restrictions are not covered by the bill," Dellinger wrote in an email to THE WEEKLY STANDARD. The bill carves out exceptions for insurance laws, as well as parental consent laws and bans on the partial-birth abortion procedure.

But isn't it possible that a court would construe government-funded health programs to be different from insurance? According to the NRLC's Douglas Johnson, "the bill is at best ambiguous.  Clearly, the state laws that bar funding of elective abortions with state Medicaid funds violate the general prohibitions in the bill -- they treat abortion differently from other medical procedures, increase cost, etc.  So the question is whether such state laws come under the exception for 'laws regulating . . . insurance coverage of abortion...' I think a judge might well rule that this means private insurance plans and not government medical-benefits entitlement programs such as Medicaid.  It would have been easy enough to write a clear exception for state medical-service entitlement programs, if that was intended."

Why didn't the bill's authors make that clear? Walter Dellinger wrote in an email that it simply "didn't seem necessary to the drafters."

Despite attempts by Blumenthal and his allies to portray the bill as mainstream, it appears that even many of his Democratic colleagues know that isn't true. As of this writing, 40 percent of the members of the Democratic Senate caucus had not signed on as cosponsors to Blumenthal's bill.

The truth is that the basic principle of Blumenthal's bill--that there's no difference between abortion and other medical procedures--is so radical that it was rejected by the Supreme Court as far back as 1980. In Harris v. McRae, a majority of the Court, including three pro-Roe justices, held that state Medicaid programs were not obligated to fund abortions and declared: "Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life."

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