A subcommittee of the House Judiciary Committee held a hearing Thursday on a bill that would impose an unconstitutional nationwide ban on abortions after 20 weeks post-fertilization. Four witnesses sat at the table during that hearing, but there was really only one person who mattered for the Republican lawmakers—whose aim, ultimately, is to outlaw all abortions. That person was Dr. Kermit Gosnell, the Pennsylvania physician now serving a life sentence for murder and manslaughter.
According to Rep. Trent Franks (R-AZ), chairman of the Subcommittee on the Constitution and Civil Justice, under whose jurisdiction the hearing was called, Gosnell is “not an anomaly in this gruesome Fortune 500 enterprise of killing unborn children.” The rogue doctor, who was roundly denounced by pro-choice activists as soon as the horrific conditions of his clinic came to light, is, for Franks, “the true face of abortion on demand in America.”
Using Gosnell as justification, Franks has retooled his proposed “Pain-Capable Unborn Child Protection Act”—previously introduced as a measure specific to Washington, D.C.—to apply to all 50 states. A D.C. 20-week ban has also been introduced in the Senate, although it is highly unlikely to come up for a vote.
If all abortion providers were like Gosnell, of course, they could be prosecuted under existing criminal laws, as Gosnell was. But they’re not—and that’s why House Republicans want to create a way to prosecute them. The Pain-Capable Act would subject doctors who perform abortions after 20 weeks to criminal prosecution, jail time, and monetary penalties. It would provide a cause of action for a woman who has an abortion after 20 weeks of pregnancy—or her husband, boyfriend, or one-night stand, as well as her family—to sue the doctor, including for punitive damages.
By pegging the gestational time-limit to disproven claims about fetal pain (which medical experts agree is not possible before the third trimester), the bill would lay the basis for limiting abortions even earlier in pregnancy, based on even more questionable science, as demonstrated at Franks’ hearing.
Maureen Condic, a University of Utah scientist who also opposes embryonic stem-cell research, testified that it is “uncontested that a fetus experiences pain as early as eight weeks.” By continually arguing that fetal pain is experienced far earlier than the established medical evidence, Condic did provide proof of something else: that Republicans’ ultimate goal is to outlaw abortion far earlier than 20 weeks.
The bill proposed by Franks contains no exceptions for the health of a woman who needs an abortion after 20 weeks, raising the specter of a woman (or the parents of a minor) suing a doctor who, in an emergency, saved her from horrific health consequences. It also provides no exceptions for rape or incest. The woman, the man by whom she is pregnant, or the woman’s family members could even seek a court order barring the doctor from performing abortions in the future.
Another of the Republicans’ three witnesses, anti-choice activist Jill Stanek, claimed that the Gosnell case is “evidence that the lines between illegal infanticide and legal feticide, both via abortion, have become blurred.”
By equating Gosnell’s criminal activity with all abortion, Franks and his supporters attempt to elide the fact that their bill is patently unconstitutional, as Rep. John Conyers (D-MI), noted. Just this week the Court of Appeals for the Ninth Circuit struck down a similar law out of Franks’ home state of Arizona.
Franks’ obvious aim is to test that conclusion, by forcing yet another legal challenge to Roe v. Wade. But he also seeks to enhance his position—at least in the court of public opinion—by attempting to persuade the public that if Gosnell, who performed illegal abortions and killed infants born alive, was found guilty of murder, all providers of abortion services must be similarly guilty.
Rep. Jerrold Nadler (D-NY), the subcommittee’s ranking member, strongly voiced his opposition to Franks’ claims. “[W]hat Dr. Gosnell did had nothing to do with abortion; it was murder,” Nadler said.
Calling the hearings a “farce,” Nadler noted that the Democrats, as the minority in the House, were not permitted by Franks to call more than one witness, while the three witnesses called by Republicans presented what Nadler called “false and misleading” medical evidence.
The one witness Democrats were permitted was Christy Zink, who recounted the heart-rending story of how she and her husband were informed during her 21st week of pregnancy that the fetus she was carrying had a lethal abnormality, agenesis of the corpus callosum. Zink said that if brought to term, her baby would have been born missing a part of its brain.