The Washington Surgi-Clinic, located just five blocks west of the White House, advertises on its website that it performs abortions 26 weeks (6 months) into pregnancy. The website of another clinic advertises second- and third-trimester abortions involving the “intercardiac injection of medication into the fetal heart” at a “private facility in the Washington, D.C. area.” All of this is perfectly legal.
Abortions may be performed in the nation’s capital for any reason during all nine months of pregnancy. But a bill passed by the House Judiciary Committee last week would curb D.C.’s abortion-until-birth policy by putting a limit on abortions at 20 weeks after fertilization, when science suggests an unborn child can feel pain. And national grassroots pro-life groups are making a strong push to bring the bill to the House floor.
“There is ample biologic, physiologic, hormonal, and behavioral evidence for fetal and neonatal pain,” Dr. Colleen A. Malloy, assistant professor at Northwestern University’s Feinberg School of Medicine, said during congressional testimony in May. Malloy, who works in the Neonatal Intensive Care Unit, said that infants born 20-weeks and later “are the patients that I perform procedures on every day and I can guarantee you that when I put a test tube in and I incubate a patient or put an IV in, they feel it.”
The modest restriction would still leave Washington’s abortion law more liberal than many western European nations, which restrict abortion after 12 weeks of pregnancy. But the D.C. late-term abortion ban would present a challenge to the Supreme Court’s ruling in Roe v. Wade’s 1973 companion case, Doe v. Bolton, that there must be “emotional, psychological, [and] familial” health exceptions to late-term bans. The D.C. ban has exceptions if a late-term abortion is necessary to save the life of the pregnant women or prevent the “substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman.” (Read the text of the bill here.)
Democrats have focused their attacks on the bill by pointing out it does not allow a late-term abortion of a severely disabled child who is not expected to live long after birth. “These are really arguments for prenatal euthanasia,” says Douglas Johnson, legislative director of the National Right to Life Committee. Johnson says that in light of the Supreme Court’s 2007 decision upholding the federal Partial-Birth Abortion Ban Act, “we think that the court majority has opened the door to defer more to elected lawmakers on extended protections.” The partial-birth abortion ban prohibited abortions when an unborn child had been delivered past its navel. But it did not ban any abortions based on an unborn child’s gestational age or development.
“The American public’s been actively misinformed for decades about the status of late-term abortion by shoddy journalism and misleading propaganda from pro-abortion advocacy groups,” says Johnson. “I do think a great number of Americans believe that you can’t get a late abortion unless there’s a very compelling reason.
“This is news even to some members of Congress that it is only one method that has been banned by federal law. That involves the partial-live delivery before being killed,” Johnson continues. “For everything else it still depends on state law. Or in the case of the federal enclave, Congress.”
A poll conducted by the Polling Company for the National Right to Life Committee found strong support for a ban on late-term abortion. The poll asked Americans: “Unless an abortion is necessary to save a mother’s life, do you think abortion should be permitted after the point where substantial medical evidence says that the unborn child can feel pain?” Sixty-three percent said abortion should not be permitted, while 21 percent said it should be permitted.
Of course, pro-choice Democrats point to some studies that contend unborn children can’t feel pain until a few weeks beyond what the D.C. bill would ban. They also argue that the issue should be left to the D.C. city council (supporters of the ban point out the law would be perfectly constitutional; Congress has explicit constitutional authority over the District and banned slavery there during the Civil War). But this isn’t an argument Democrats want to have.
Nancy Pelosi declined to comment on the bill last Thursday, after the Judiciary Committee had passed the bill. “I’m just not familiar with it. I’m sorry,” Pelosi told THE WEEKLY STANDARD following her weekly press conference. During a subcommittee on the hearing in May, New York Democrat Jerrold Nadler slipped up and accidentally referred to an unborn child protected by the bill as “a preemie at 20 weeks in utero” before catching himself. “Excuse me,” Nadler said, “a fetus at 20 weeks in utero.”
The White House has not yet issued a statement on the bill. The issue of late-term abortion has tripped up Obama in the past. “I have repeatedly said that I think it’s entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother,” Obama said in 2008. “Now, I don’t think that ‘mental distress’ qualifies as the health of the mother.” But days later he backtracked on the issue.
Despite the law’s popularity—there are 221 cosponsors in the House—it’s not clear that the House GOP leadership will bring the bill to the floor. House Majority Leader Eric Cantor has not scheduled a vote on it.*
“We are urging strongly for there to be a vote,” says NRLC’s Douglas Johnson. “If it’s not brought up and passed in the House, it’s going to be viewed by many Americans as a dereliction or some kind of a ratification of this policy that they’ve learned about and are outraged by.”
*Update: The House leadership announced on Thursday that it will vote on the late-term ban on July 31.