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'Pain capable' abortion regulation makes waves in U.S. House

The House of Representatives Tuesday passed a bill banning late-term abortions beyond 20 weeks into pregnancy. The mainly party-line vote was 228-196.

The bill differs from the one that passed the House Judiciary Committee last week, allowing more exceptions — including an exception for rape and incest, as well as the life of the mother.

HR1797, the “Pain Capable Unborn Child Protection Act," derives its title from the gestation point, 18 to 20 weeks, which many experts hold to be the point at which the fetus experiences pain.

The bill’s author was Arizona Republican Trent Franks, who said in a statement after the Judiciary Committee vote last week that “knowingly subjecting our innocent unborn children to dismemberment in the womb, particularly when they have developed to the point that they can feel excruciating pain every terrible moment leading up to their undeserved deaths, belies everything America was called to be. This is not who we are."

On Thursday last week, Minority Leader Nancy Pelosi, D-Calif., held a press conference condemning the legislation, calling it “really just another day in the life of the Republican Congress.”

“They passed legislation that was disrespectful to the rights, health and safety of American women,” Pelosi said. “All the people who voted for the bill were men. Disrespectful.”

“… As a practicing and respectful Catholic, this is sacred ground to me when we talk about this,” Pelosi said. “This shouldn’t have anything to do with politics.”

Pelosi’s invocation of Catholicism drew reaction from other Catholics, including Maureen Ferguson, senior policy adviser for the Catholic Association, who said in a statement, “The only difference between the Gosnell ‘after-birth’ abortions and legal late-term abortions is the location of the baby at the time of death. And contrary to Pelosi's extreme claim that the Franks bill is ‘disrespectful’ to women, the majority of women are opposed to late-term abortions, according to a recent Gallup poll."

Kermit Gosnell is the Philadelphia abortion doctor just sentenced to life in prison after being convicted of murdering infants born alive in botched abortions in his clinic.

The “pain capable” regulation approach reflects a direct challenge to existing Supreme Court doctrine that holds that states may only begin regulating abortion at the point of viability, currently understood to be roughly 24 weeks.

A half-dozen states have recently adopted "pain capable" legislation challenging this limitation by restricting abortion between 20 and 22 weeks. Last month, the Ninth Circuit Court of Appeals struck down an Arizona law, which prohibited abortion beginning at 18 weeks. State "pain capable" abortion regulation seems destined for the Supreme Court.

The Arizona law was struck down, said Tarek Rizk, spokesman for the National Abortion Rights Action League, despite having included medical exceptions that are lacking in the bill now moving through the U.S. House of Representatives.

Originally, the bill also lacked an exclusion for rape and incest but on Friday House GOP leaders announced that a rape exception was being added to the bill.

"We were disappointed that the bill was passed without any exception for survivors of rape to come to terms with what has happened to them and to seek an abortion," said NARAL’s Rizk.

He argued that the notion of a 48-hour reporting window to report a rape, a time frame that had been cited by Franks in his public comments, naïvely compared the experience of rape to the detection of a burglary or other property crime. Rizk argued that the unique psychological violation that occurs in rape means that it can take weeks or months before a woman is prepared to report it and deal with it.

Franks created a furor last week when he commented that "Pregnancies from rape that result in abortion after the beginning of the sixth month are very rare. This bill does not address unborn children in earlier gestations. Indeed, the bill does nothing to restrict abortions performed before the beginning of the 6th month.”

Frank's comments immediately became a flashpoint of controversy, recalling to mind last year’s Missouri Senate candidate Todd Akin’s amateur biological speculations about the body’s self-defenses against rape-induced pregnancy.

Many assumed that Franks' comment was meant to echo Akin’s, although the meaning of Franks' comment — and he later clarified it along the same lines — was not that rape-induced pregnancies are rare, but rather that abortions to terminate them late in pregnancy are rare.

Eric Schulzke writes on national politics for the Deseret News. He can be contacted at