U.S. House Judiciary Committee Approves Bill to Provide Nationwide Protection for Pain-Capable Unborn Children


Full House Action Planned for Week of June 17

WASHINGTON (June 12, 2013) — The Judiciary Committee of the U.S. House of Representatives today approved landmark legislation to provide nationwide protection for unborn children who are capable of feeling pain, beginning at 20 weeks fetal age. Action by the full House is expected the week of June 17.

“Because of publicity surrounding the trial of Kermit Gosnell and subsequent revelations about other abortionists, many Americans are becoming aware for the first time that abortions are frequently performed late in pregnancy on babies who are capable of being born alive, and on babies who will experience great pain while being killed,” said NRLC Legislative Director Douglas Johnson. “This bill is the most significant piece of pro-life legislation to come before the House since the Partial-Birth Abortion Ban Act, which the U.S. Supreme Court upheld in 2007.”

The legislation, the Pain-Capable Unborn Child Protection Act (H.R. 1797), is strongly supported by the National Right to Life Committee (NRLC), the federation of state right-to-life organizations. It is based on an NRLC model bill that has already been enacted in nine states. The Judiciary Committee approved the bill by a vote of 20 to 12. Republicans on the committee were united in support, and were joined by one Democrat.

In a nationwide poll of 1,003 registered voters in March, The Polling Company found that 64% would support a law such as the Pain-Capable Unborn Child Protection Act prohibiting abortion after 20 weeks — when an unborn baby can feel pain — unless the life of the mother is in danger.  Only 30% opposed such legislation. Women voters split 63%-31% in support of such a law, and 63% of independent voters supported it.

H.R. 1797 contains congressional findings of fact regarding the medical evidence that unborn children experience pain at least by 20 weeks “post-fertilization age,” or the start of the sixth month. The bill generally bars abortion after that point, with an exception that applies when an acute physical condition endangers the life of the mother. Note: 20 weeks post-fertilization age (“fetal age”) is equivalent to “22 weeks of pregnancy” in the widely employed “LMP” dating system. Journalists who wish to translate into the “weeks of pregnancy” or “weeks of gestation” (LMP) dating system are free to do so, of course, but if they write that the bill would “ban abortion at 20 weeks of pregnancy,” they are in error by two weeks. In the “weeks of pregnancy” system, the bill applies at 22 weeks.

Some of the extensive evidence that unborn children have the capacity to experience pain, at least by 20 weeks fetal age, is available on the NRLC website at http://www.nrlc.org/abortion/fetalpain and also here: http://www.doctorsonfetalpain.com/

The science behind the findings in the bill was explored at a May 23 congressional hearing. The testimony of the witnesses is posted here: http://www.nrlc.org/abortion/fetalpain/Witnesses1797Hearing052313. 

A medical illustration of one common method of late abortion (“D&E”) is posted here: http://www.nrlc.org/abortion/pba/DEabortiongraphic.

ACTION ON STATE LAWS

The nine states that have enacted bills based on the NRLC model are (in order of enactment) Nebraska, Kansas, Idaho, Oklahoma, Alabama, Georgia, Louisiana, Arkansas, and North Dakota.

An Arizona statute, recently blocked by a panel of the 9th Circuit Court of Appeals, applied two weeks earlier in pregnancy than does H.R. 1797, and was based primarily on a very different legal justification. Moreover, as NRLC’s Johnson noted, “The federal Partial-Birth Abortion Ban Act was ruled invalid by six lower federal courts before the U.S. Supreme Court upheld it in 2007. Clearly, some judges on the lower federal courts still want to ignore the significance of the 2007 Supreme Court ruling upholding the national ban on the partial-birth abortion method.”

HOW MANY LATE ABORTIONS AND ABORTIONISTS ARE THERE?

In 1995-96, many mainstream media outlets reported as unvarnished fact the claims of pro-abortion advocacy groups that partial-birth abortions were very “rare” and performed only in acute medical circumstances. These claims were later proven false by congressional investigators and investigative journalists, and were even ultimately repudiated by the head of the National Coalition of Abortion Providers (NCAP), who described the claims as a concocted “party line.” NCAP Executive Director Ron Fitzsimmons admitted to the New York Times that the partial-birth abortion method was used 3,000-5,000 times annually, and “in the vast majority of cases” on “a healthy mother with a healthy fetus that is 20 weeks or more along” (New York Times, Feb. 26, 1997).

However, the same pattern of eagerness to minimize painful late abortions is found in some recent media coverage surrounding the Gosnell trial and revelations regarding other late-abortion practitioners. News stories often assert that late abortions are “rare” and sometimes assert that late abortions usually involve serious medical problems of the mother or fetus. Yet these “facts” are not supported by hard data, and indeed run contrary to much of the evidence that is available.

The phrase “late-term abortion” has no fixed legal or medical meaning. Its use in news stories, without specific definitions, can be misleading and distort the debate. This distortion is in part deliberately engendered by pro-abortion groups, who use the phrase “late-term” as code for “third-trimester,” meaning after 27 weeks LMP (about the seventh month and later).

However, most Americans probably would agree that any abortion performed after the point that a live birth might occur (about 18 weeks in the LMP system, or the beginning of the fifth month) is a “late abortion,” and would surely agree that any abortion in the second half of pregnancy (after 20 weeks LMP) is a “late abortion.” The Pain-Capable Unborn Child Protection applies protection beginning at 22 weeks LMP (20 weeks fetal age), about the beginning of the sixth month. Beginning just one week later, one-fourth to one-third of premature babies survive long-term with good neonatal care.

So, how many abortions are performed in the U.S. on pain-capable unborn children, after 22 weeks LMP (20 weeks fetal age)? NRLC’s Johnson said: “Nobody has a good handle on how many late abortions are really occurring, but there is growing evidence that they are far more common than most people want to think.”

The Gosnell case and recent hidden-camera videos issued by the organization Live Action provide further evidence that a great deal of the late abortion iceberg is below the water. Some of the jurisdictions with the most liberal abortion policies have no reporting requirements — for example, California, Maryland, and D.C. — or do not collect data on stage of pregnancy (Florida, for example). Other jurisdictions have reporting requirements but don’t enforce them — the Grand Jury report on Gosnell said (page 171) that between 2000 and 2010, Gosnell reported only one second-trimester abortion to the state. Yet it appears (pp. 26-27, 88) that Gosnell probably performed thousands of second-trimester and third-trimester abortions during that decade. Multiple other practitioners who perform large volumes of late abortions have also failed to report or not been required to report.

A 2008 study, “Abortion in the United States: Incidence and Access to Services, 2005,” released by the Guttmacher Institute (which was originally founded as a special affiliate of the Planned Parenthood Federation of America, currently the nation’s largest abortion provider) found that, in 2005, there were at least 1,787 abortion providers in the United States. Of the 1,787 providers, the study found that “[t]wenty percent of providers offered abortions after 20 weeks [LMP], and only 8% at 24 weeks [LMP]…” This translates to at least 300 abortion providers who will perform abortions after 20 weeks LMP and around 140 willing to perform abortions at 24 weeks LMP.

The 140 or more abortion providers who perform abortions at 22 weeks LMP and later would be the providers directly affected by H.R. 1797.

Founded in 1968, National Right to Life, the federation of 50 state right-to-life affiliates and more than 3,000 local chapters, is the nation’s oldest and largest grassroots pro-life organization. Recognized as the flagship of the pro-life movement, NRLC works through legislation and education to protect innocent human life from abortion, infanticide, assisted suicide and euthanasia.