This week brings with it yet another difficult Roe v. Wade anniversary. But this one has something different about it: not only will Congress be in session on this day, but the House looks poised to pass the “Pain-Capable Unborn Child Protection Act.” This would essentially ban abortion beyond 20 weeks with exceptions for pregnancy as a result of sexual violence and when the mother’s life is in danger.

Those who believe that current US abortion jurisprudence prohibits these things of restrictions are aghast. Don’t lawmakers know that Roe disallowed this kind of thing?

Maybe Roe did. But subsequent high court decisions have changed the essence of the law in important ways. In a piece published today in The Federalist I asked my readers not to take my word for it:

In a 2010 article she wrote in the William and Mary Journal of Women and the Law, Caitlin W. Bormann says quite directly that the 1992 case Planned Parenthood v. Casey “established a new, less protective, constitutional standard for abortion restrictions.” Instead of defending privacy, Casey focused on making sure that abortion restrictions didn’t impose what it calls an “undue burden” on women. This standard, she says, “immediately enabled states to invade women’s privacy in new ways.”

Bormann says the Roberts court “has interpreted Casey expansively”, resulting in “erosions of the privacy boundaries” that were once protected by Roe. Indeed, she says that certain privacy rights to abortion were “eviscerated” by Casey, especially as interpreted by the all-important swing voter on the Court, Justice Anthony Kennedy.

And she isn’t alone:

Writing in the New Yorker, Jeffery Toobin agrees. Would Kennedy uphold a state law with a 20-week (or earlier) ban? Toobin points out that in Gonzales v. Carhart (2007) this swing justice upheld federal law against late-term abortions with a very different sensibility from his opinion in Casey. Kennedy wrote, “The State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” What counted as an undue burden for him when he helped decide Casey in 1992, Toobin noted ominously, looked very different to Kennedy fifteen years later.

But simply because it is legally viable doesn’t mean the the Pain-Capable Act is politically viable. While it looks to pass the House easily, the Senate looks trickier. With pro-life Democrats on board, it may be able to resist a filibuster, but overcoming a likely Obama veto looks more difficult. Some moderate pro-choicers could be lured away (not least because 20 weeks is actually a pretty tame restriction–even in liberal, pro-choice Europe), but only with the right carrots attached.

Interestingly, lots of things could be offered that serve the pro-life goal of making it more likely that mothers will choose something other than abortion: mandatory paid maternity leave, increased legal protections against gender discrimination, child care subsidies, and much more. Indeed, beyond politically smart, these kinds of provisions are simply the right thing to do. Period. Or at least so says Pope St. John Paul II in #19 of his encyclical Laborem Exercens:

In this context it should be emphasized that, on a more general level, the whole labour process must be organized and adapted in such a way as to respect the requirements of the person and his or her forms of life, above all life in the home, taking into account the individual’s age and sex. It is a fact that in many societies women work in nearly every sector of life. But it is fitting that they should be able to fulfil their tasks in accordance with their own nature, without being discriminated against and without being excluded from jobs for which they are capable, but also without lack of respect for their family aspirations and for their specific role in contributing, together with men, to the good of society. The true advancement of women requires that labour should be structured in such a way that women do not have to pay for their advancement by abandoning what is specific to them and at the expense of the family, in which women as mothers have an irreplaceable role.

Will the GOP be willing to “go there” in order to get this important law passed?  It was always odd that the party of small federal government was the one to which pro-lifers hitched their wagon. And given this structural challenge, signs point to “no.” But, regardless, Senate Republicans should be watched very closely to see how energetically they work to get this bill passed. If they fail to go all-in on such a important and popular bill (a 20-week ban is supported by 64% of Americans), then pro-lifers will have received a very clear message.

We will need a new strategy–one that goes beyond the GOP–for procuring legal protections of the most vulnerable members of the human family.


It appears I was wrong to worry that the problem would come from lack of GOP commitment in the Senate.  Despite the fact that they passed this bill last term, and that they have even more power and momentum this term (brought in no small measure by the efforts of pro-lifers), the House GOP caved last night and took the Pain-Capable Act off the table. There are difficult and important questions to ask about the nuances of the bill, but there wasn’t even an attempt to deal with these nuances. The House GOP simply gave up.

Message received.

[UPDATE 1/23]

National Journal has the very detailed and important story of how the failure of a popular pro-life bill went down. There are several moving parts, including yet another discussion about how the sexual violence provision would be addressed (hard to believe the GOP let it get to that point again, but they did), but the basic take-away is that they didn’t consider the bill important enough to fight for. The story makes it is clear they had no intention of working compromises to get Democrat votes in order to override an Obama veto. It is also clear that the bill was not a priority:

“We’ve got several bigger issues coming up next week and beyond,” said one member, describing the sentiment behind closed doors. “We don’t need to fractionalize our conference.”

Again, message received.