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Democrats were allowed one witness to the Republicans' three at a hearing on Rep. Trent Franks' proposed 20-week abortion ban.

Written by Sarah Posner for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

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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.


Zink called the bill a “lie”; if its purpose, she said, was to spare babies from pain, preventing women like her from having abortions would hardly accomplish that goal. “If the baby survived the pregnancy, which was not certain,” she said, “his condition would require surgeries to remove more of what little brain matter he had, to diminish what would otherwise be a state of near-constant seizures.”


Rep. Louie Gohmert (R-TX), showed little compassion for Zink. “Should we wait,” he mused, “and see if the child can survive, before we decide to rip him apart?”


With the Democrats so limited in their presentation of witnesses, Dr. Willie Parker of Physicians for Reproductive Health submitted written testimony to the subcommittee calling the bill “cruel legislation” that “abandons and endangers women by criminalizing safe abortion.” The civil and criminal penalty provisions, Parker added, “are clearly intended to intimidate health care providers from providing abortion care.”

As Parker noted, most abortions take place early in pregnancy. Only 12 percent of abortions take place at or after 13 weeks after a woman’s last menstrual period (LMP), Parker wrote, and only 1.4 percent occur after 21 weeks LMP. Yet in spite of their attempts to outlaw a tiny fraction of abortions—which are frequently the result of the discovery of lethal fetal abnormalities or threats to the life or health of the woman—the testimony of the Republicans’ medical and scientific witnesses seemed to suggest that abortion should be outlawed at virtually any time.


Dr. Anthony Levitano, who also testified for the Republicans, is an OB-GYN who used to perform abortions, and described in detail how the process of performing a 24-week abortion led him to oppose all abortion.


Levitano has recited these details before, appearing in the 2011 film, The Gift of Life, produced by Citizens United, the advocacy group whose activities led to the Supreme Court campaign finance decision. The film, which promoted the passage of laws that would give a fetus the rights of a person, attempted to demonize abortion providers by lionizing Levitano’s conversion to the anti-choice cause.

As Dr. Douglas Laube, board chair for Physicians for Reproductive Health, told Religion Dispatches in 2011, Levitano did not seem to take into account his patient’s situation. “I see it as a disconnect,” said Laube. “It does not connect logically with a reason not to support the right to choose. It's his feelings versus her right to choose.”


The views, conditions, or situations faced by women as patients similarly did not factor into Thursday’s hearing. That’s not surprising, given that under Franks’ view of the Constitution, fetuses have the right to life, liberty, property, and the due process of law, but women apparently do not. As he adjourned the hearing, Franks asked, “Are we prepared to say that such violence, visited on children year after year after year, is somehow the price of freedom?”
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