Pro-abortion Coalition Unveils Sweeping New National Abortion-on-Demand Legislation in Congress


Mary Spaudling Balch, JD, director, NRLC Department of State Legislation

Mary Spaudling Balch, JD, director, NRLC Department of State Legislation

WASHINGTON (November 20, 2013) – A large group of pro-abortion members of Congress have introduced sweeping new legislation that is intended to nullify virtually all state and federal limitations on abortion, at any point in pregnancy.

Major pro-abortion groups, including the Planned Parenthood Federation of America (PPFA), NARAL Pro-choice America, and the Center for Reproductive Rights, immediately began promoting the bill in communications to pro-abortion activists and in their fundraising appeals.

The bill reflects the alarm in pro-abortion activist ranks at the legislative successes of the pro-life movement in many state legislatures in recent years – including, for example, enactment of the NRLC-crafted Pain-Capable Unborn Child Protection Act in 10 states.

The new 15-page proposal is formally titled the “Women’s Health Protection Act.” It was introduced on November 13 in the Senate as S. 1696 by Senator Richard Blumenthal (D-Ct.) and 30 cosponsors, all Democrats. Identical companion legislation (H.R. 3471) was introduced in the House of Representatives by Rep. Judy Chu (D-Ca.) and 59 cosponsors, all Democrats.

Blumenthal called it “a clear and certain response to” a “cascading wave of restrictions” on abortion enacted by state legislatures over the past several years.

In a letter promoting the bill released November 13, PPFA, NARAL, and numerous other pro-abortion groups asserted that “states enacted a recordbreaking 92 restrictions on abortion in 2011, and over 100 additional dangerous and unnecessary measures have passed into law since then.”

Nancy Northup, president of the Center for Reproductive Rights.

Nancy Northup, president of the Center for Reproductive Rights.

In a November 19 fundraising solicitation on the bill, Nancy Northup, president of the Center for Reproductive Rights, said “it’s become crystal clear that we need to go on the offensive.”

NRLC State Legislation Director Mary Spaulding Balch commented, “As early as 1980, the U.S. Supreme Court, including three justices who supported Roe v. Wade, wrote, ‘Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.’ But this bill would impose the extreme doctrine that there is nothing at all different about abortion – the unborn child is an absolute non-entity, a zero, under this bill. The bill would also effectively leave women at the unregulated mercy of the most incompetent, mercenary, or biased abortion practitioners – and this is the real ‘war on women.’”

NRLC Federal Legislative Director Douglas Johnson commented, “The new bill is labeled the ‘Women’s Health Protection Act,’ but it would more accurately be titled the ‘Abortion on Demand Until Birth Protection Act.’ Under this bill, the unborn child has no more rights, from conception until birth, than a malignant tumor. This is an extreme pro-abortion ideology far removed from the views of the majority of Americans.”

Much Like FOCA

Senator Richard Blumenthal (D-Ct.)

Senator Richard Blumenthal (D-Ct.)

In its basic thrust, the new bill is similar to the “Freedom of Choice Act” (FOCA), which was a major pro-abortion priority during the Clinton Administration, and which Barack Obama endorsed during his 2008 run for president.

President Obama has not yet taken a position on S. 1696/H.R. 3471. Nor is it yet clear whether the groups and senators promoting the bill will urge Senate Majority Leader Harry Reid (D-Nv.) to allow a vote on the measure any time soon, or what Reid’s response will be if they do press such a request.

However, in an interview with the newspaper Roll Call, Blumenthal said, “As the election approaches, I think the voters are going to want to know where legislators stand on these issues,” referring to the 2014 mid-term congressional elections, in which control of both houses of Congress will be up for grabs.

NRLC’s Johnson commented, “I certainly agree with Senator Blumenthal on this much: Voters should learn where their federal representatives stand on this legislation.”

Sweeping protections for abortion

The bill, if enacted and upheld by the federal courts, would generally prohibit any level of government – federal, state, or local – from applying any regulations that “single out” abortion and that do not apply to “medically comparable procedures.” Blumenthal told a reporter for The Weekly Standard that it’s “for doctors to decide” what “medically comparable” means.

In addition, any law would be nullified if it would “make abortions services more difficult to access and does not significantly advance women’s health or the safety of abortion services.” The bill directs courts to regard any law that might delay an abortion, that would “directly or indirectly increase the cost of providing abortion services,” or that “is reasonably likely to result in a decrease in the availability of abortion services in the State,” as being a violation of the proposed federal standards.

The bill would nullify even specific types of abortion-related laws that have been held by the U.S. Supreme Court not to violate any constitutional right – indeed, the prohibitions in the bill would apply even if the U.S. Supreme Court entirely repudiates Roe v. Wade and the other rulings that were built on Roe. The bill authorizes lawsuits by both federal officials and private parties to enforce its provisions.

NRLC’s Johnson, recalling the multiple criminal convictions of Pennsylvania abortionist Kermit Gosnell earlier this year, commented, “This bill would provide a federal legal shield for gangster abortionists like Dr. Kermit Gosnell. It would nullify some of the laws that Gosnell was convicted under, such as the Pennsylvania law limiting the circumstances under which abortion can be performed after 24 weeks of pregnancy. The pro-abortion groups and lawmakers also wish to nullify the tighter oversight of abortion providers that have been put in place in Pennsylvania and various other states since the Gosnell scandal.”

Late Abortions Protected

The bill explicitly prohibits any ban on abortion before “viability” (the point at which the child can survive independently of the mother), and dictates that only “the treating health care professional” (the abortionist) may determine whether “viability” exists in any given case. This provision, among others, would invalidate the laws enacted by 10 states since 2010, which declare that unborn children are capable of experiencing pain at least by 20 weeks fetal age, and that generally prohibit abortion after that point.

The bill would also require every state to allow abortion even after viability if “the treating physician” (the abortionist) asserts that it will avoid “risk” to the “health” of the pregnant woman. At a November 13 press conference, in response to a question from a reporter for The Weekly Standard, Blumenthal acknowledged that “health” includes a doctor’s personal assessment of psychological health.

“It doesn’t distinguish,” Blumenthal said flatly.

“This bill would provide a federal statutory empowerment for any abortionist to perform an abortion at any point before birth, based merely on his assertion that this will avoid some ‘risk’ to the mother’s emotional ‘health,’” Johnson commented.

However the bill exempts the federal ban on the partial-birth abortion method that was enacted in 2003 – apparently a political concession on the part of the drafters.

The bill also states that it “shall not apply to laws regulating . . . requirements for parental consent or notification before a minor may obtain an abortion” or to laws regulating “insurance coverage for abortion.”

Johnson said that it was doubtful that the “insurance coverage” exception would be interpreted to apply to government-run entitlement programs such as Medicaid, so the likely result would be that government health programs would be required to fund abortion on demand, even though private insurance plans would not be required to cover abortion.

Federal and state “conscience” laws, which provide some protection for the right of health care professionals to refuse to participate in providing abortions, would be invalidated by the proposed bill, since they would be regarded as reducing access to abortion.

Laws that allow only licensed physicians to perform abortions – so-called “doctor-only laws” – would also be invalidated under the bill, for the same reason. Several states, most recently California, have legalized the performance of abortions by some nurse practitioners, certified nurse-midwives and physicians’ assistants, but most states still enforce “doctor-only” laws.

All laws requiring waiting periods before an abortion, and state “right to know” laws requiring provision of information on the unborn child (including, in some states, access to ultrasound images) and alternatives to abortion, would be invalidated.

Also prohibited would be laws that restrict the reasons for which abortions may be performed – for example, bans on abortions performed purely as a method of selecting the sex of a child to be born.

To view an always-current list of co-sponsors of either S. 1696 or H.R. 3471, arranged by state, go to the National Right to Life Legislative Action Center and click on the tab “Issues and Legislation.”