November 7, 2013 — Sen. Lindsey Graham (R-S.C.) on Thursday will introduce a measure that would ban abortion after 20 weeks of pregnancy, based on the disputed theory that fetuses can feel pain at that point, the Greenville News reports.
The Pain-Capable Unborn Child Protection Act would make it illegal to perform or try to perform an abortion without first attempting to determine the age of the fetus since fertilization, according to the News. If the fetus is found to be 20 weeks or older, providers cannot perform an abortion unless the woman's life is in danger in certain circumstances or the pregnancy resulted from rape or incest of a minor, and the rape or incest has been reported to legal authorities. The News reports that providers who perform procedures under the bill's exceptions would have to take steps to ensure that the fetus has "the best opportunity" to survive, unless doing so would endanger the woman's life or pose serious bodily harm to her.
Providers who violate the law would face imprisonment of up to five years, fines or both. The woman could not be prosecuted under the bill (Smith, Greenville News, 11/6).
The bill is similar to a measure (HR 1797) that passed the House earlier this year, except in that the Senate version does not include a constitutional enumeration expressing Congress' authority to pass a nationwide ban. The House version pointed to both the Commerce Clause and the 14th Amendment as justification for such authority (Everett , Politico, 11/6).
Sen. Graham's Announcement
Graham held a press conference Thursday at the Capitol Visitor Center to introduce the bill, joined by Susan B. Anthony List President Marjorie Dannenfelser and National Right to Life Committee President Carol Tobias (Everett , Politico, 11/6).
Sen. Marco Rubio (R-Fla.) on Wednesday said he will co-sponsor the bill, after declining to act as lead sponsor. Rubio said he supports the legislation but has concerns about it being held up in court if it is enacted. Other co-sponsors include Sens. Chuck Grassley (R-Iowa) and Roy Blunt (R-Mo.). Sens. Ted Cruz (R-Texas), Mike Lee (R-Utah) and Rand Paul (R-Ky.) also will probably support it, according to the bill's backers.
Bill Based on Disputed 'Fetal Pain' Theory
Graham said the government "has a legitimate interest in protecting the unborn child over the 20-week period because they are capable of feeling pain and the scientific evidence is overwhelming." He claimed that physicians administer anesthesia when they "do surgery on a 20-week baby ... because of pain" (Everett , Politico, 11/6).
While the science of fetal pain theory is complex, the New York Times in September reported that "[m]ost scientists who have expressed views" on the issue concur that the neurological wiring required for a fetus to experience pain is not in place until after the time most abortions occur. Scott Adzick, a fetal surgeon at Children's Hospital of Philadelphia, explained that the reason anesthesia is administered to fetuses is to prevent maternal pain, immobilize the fetus, relax the uterus and block the harmful effects of a fetus' stress response (Women's Health Policy Report, 9/17).
According to both Republican and Democratic aides, the bill is mainly a "messaging device" that conservatives hope will unify a divided party and garner public support, Politico reports.
According to Politico, the bill will "serve to boost enthusiasm for Republicans among their conservative base" as concerns about the midterm election "creep into every decision on Capitol Hill." Conservatives also hope to "get out front of Democrats on social issues," which observers believe contributed to Virginia Attorney General Ken Cuccinelli's (R) loss in the state's gubernatorial race.
Meanwhile, Senate Majority Leader Harry Reid (D-Nev.) and some other Democrats appear confident that letting the bill come up for a floor vote would ultimately hurt the GOP at the polls. Sen. Patty Murray (D-Wash.) said GOP lawmakers would support the bill "at their own peril," pointing to Cuccinelli's loss in Virginia and that of a tea party-backed House candidate in Alabama.
Given the number of centrist lawmakers in the Senate, both supporters and opponents of abortion rights will lobby over the bill if it appears headed toward a vote, according to NARAL Pro-Choice America Policy Director Donna Crane. Crane added, "We don't have a pro-choice majority in the Senate. So we're both going to be fighting for senators" (Everett , Politico, 11/6).