Yesterday evening the House of Representatives passed the “Pain-Capable Unborn Child Protection Act,” a ban on legal abortions 20 weeks or more after fertilization based on dubious evidence that fetuses can feel pain during the second trimester. Sound unconstitutional? That’s because it is; courts have struck down similar state-wide bans in Arizona and Idaho (and temporarily delayed a similar measure in Georgia) based on Supreme Court precedent.
We don’t yet need to gear up for a legal fight on this the national ban, though, because it won’t become law this time around: the Senate isn’t pro-choice, but it is unlikely to even consider the bill. If it does, the measure has too little support to break a filibuster or overturn the already-promised presidential veto.
The bad news is that the 20-week ban, sponsored by Rep. Trent Franks (R-AZ), is evidence the GOP isn’t backing down on its fight against abortion access. After the 2012 election, high-ranking Republican leaders, including John McCain, called for a shift in party focus: promising to roll back reproductive rights, they seemed to say, is just not a strategy that will win us national elections.
Despite this opportunity to liberalize its stance, though, the anti-choice GOP has only redoubled its efforts, even when they know the proposed bills have no shot. (This kind of symbolic voting in the House isn’t rare. Let’s remind ourselves that the House has voted to repeal Obamacare how many times? 37? And guess what kids, I’m still not paying for my birth control.) Legislative campaigns like these may not result in immediate victories, but they energize the anti-choice base and inspire similar state-level efforts, which are more likely to be passed and, ultimately, present a challenge to abortion rights in the Supreme Court. These efforts also force reproductive justice advocates onto the defensive, distracting them from efforts to expand access, and shift the conversation: because of yesterday’s vote I’m writing about an absurd 20-week abortion ban rather than how to overturn the Hyde Amendment.
Franks’ bill threatens to redefine not only life but rape, tying the anti-choice effort into a larger anti-feminist agenda. At Mother Jones, Kate Sheppard writes:
In order to obtain an abortion after 20 weeks under this law, a woman who was raped must be able to prove that she reported the rape to authorities—a requirement not present in other rape exceptions to federal abortion laws.
Republicans added this provision to the bill, which originally included no exceptions for rape or incest, after the House Judiciary committee approved it last week. But the alternative language Republicans inserted creates its own problems. It is more restrictive than the Hyde Amendment, the law barring federal funds from being used to pay for abortions. Hyde specifically exempts cases of rape, incest, or when the life of the mother is at stake—with no requirement that women have documentation from police that they reported the crime.
According to numbers from the Bureau of Justice Statistics, less than half of all rapes or sexual assaults are reported to the police (the bureau’s latest report actually found that the percentage reported to police has declined in recent years—from 56 percent in 2003 to 35 percent in 2010). Democrats pointed out that fear of violence, concerns about dealing with the legal system, and shame may prevent many women from reporting rape.
Yesterday’s vote may have few immediate legal repercussions, but it is adds a particularly big gash to the GOP’s “death by a million cuts” strategy to roll back feminist victories of the last 50 years. Given the volume and range of attacks, choosing our battles is a tricky, dangerous task. We may just need to pick all of them.