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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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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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