Subcommittee on Constitution considers unconstitutional abortion ban

Yesterday, the House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing on H.R. 1797, the so-called District of Columbia Pain-Capable Unborn Child Protection Act, sponsored by Rep. Trent Franks (R-Ariz.). This bill would ban women from obtaining abortion care after 20 weeks in the District of Columbia, and Franks has stated that he plans to amend it to apply nationwide. However, no matter its jurisdiction, this bill dangerously jeopardizes the health and well-being of women and is blatantly unconstitutional.
 
The Supreme Court has consistently held that states may not ban abortion care before viability. And just this week, the Ninth Circuit Court of Appeals struck down as unconstitutional a similar 20-week ban in Franks’s home state of Arizona. Judge Marsha Berzon, writing for the unanimous three-judge panel, said, “a woman has a right to choose to terminate her pregnancy at any point before viability — not just before twenty weeks gestational age — and the State may not proscribe that choice.”
 
Franks should not be imposing an abortion ban on D.C. or the rest of the nation that was just declared unconstitutional in his home state. Furthermore, a subcommittee charged with presiding over constitutional amendments and constitutional rights should not advance such a blatantly unconstitutional bill.
 
Aside from its flawed constitutional foundation, this bill ignores the real circumstances and complications women can face during pregnancy.
 

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Women need access to abortion care after 20 weeks for a variety of reasons. Some women have a medical complication or condition that could worsen if they continue the pregnancy and others find out in a very wanted pregnancy that their fetus has an anomaly that is incompatible with life. Some medical issues are not detectable prior to 20 weeks, and this bill contains no exceptions for these heartbreaking cases. Nor does it contain an exception for cases of rape, incest, or when an abortion is necessary to preserve a woman’s health.
 
But even if it had those very narrow exceptions, this bill would still have devastating consequences for women. Some women do not recognize that they are pregnant until the pregnancy is advanced — sometimes due to irregular periods, health conditions or misdiagnosed pregnancies — and others may have to delay care while they raise necessary funds or travel great distances to obtain the abortion care they need.
 
This bill would deny abortion care to a woman even if her healthcare provider determines that abortion care is her best medical option. It would also force a woman to wait until severe medical conditions become life threatening before she could obtain the abortion care she needs. 
 
Additionally, the very premise of this bill — that a fetus can feel pain at 20 weeks — is contrary to credible scientific evidence and without support from leading international experts.
 
Although abortion opponents often use arguments about fetal pain to advance an anti-choice political agenda, the body of scientific evidence clearly demonstrates that a fetus is incapable of feeling pain prior to the 24th week of gestation, and possibly throughout pregnancy. We must not allow the personal ideologies of some abortion opponents to trump credible scientific evidence.
 
Franks’s bill clearly disrespects women. His bill would allow a woman’s husband, sibling, parent or her “current or former licensed health care provider” to go to court and prevent her from obtaining abortion care. And it would impose heavy criminal penalties, including two years in jail, and civil penalties on medical professionals if they provided abortion care in violation of this inhumane bill.
 
Congress should not pass laws that disregard the constitution, scientific evidence or the real circumstances and complications women can face during pregnancy. The decision to seek abortion care is one that is best made by a woman in consultation with her health care provider and those she chooses to involve. The House should reject this harmful, misguided and unconstitutional legislation.


Saporta is the president of the National Abortion Federation (NAF), the professional association of abortion providers in North America.