Washington DC: Staging Ground for Ending Legal Access to Abortion?

In the last two years, Washington DC has taken the lion’s share of abuse as a part of the Republican Party’s war on women. With Congress using its authority to dominate the district’s home rule with their own ideas for legislation, and a bitter, partisan battle over everything from budgets to taxes to what type of silverware should be used in the Capitol’s cafeteria, the House GOP has taken the opportunity to use DC as a bargaining chip, attempting to impose their own social agenda on the city to either get better leverage in negotiations or toss more red meat to their conservative base.

Despite running for office on a mandate that the national government should not interfere with the decisions of local entities, the GOP made it clear that when it comes to a woman’s right to control her own body, keeping her pregnant supersedes their avowed love of “states’ rights.” In 2010, Republicans nearly shut down the entire government by refusing to pass a budget, attempting to force the Democrats to include, among other cuts, an elimination of all government funding for family planning.  

They didn’t get their way. But in exchange, they got something that in the end may be more important – a ban on “taxpayer funding” for abortions in DC

Not allowing the poor women of the district to use Medicaid to help pay for terminating a pregnancy may seem like a small loss in the greater scheme of reproductive rights. But the success of imposing their rigid moral view on the city did something even more important. It allowed Republicans to see that they could use their congressional power to impose anti-choice legislation on a local area--a region that lacks the ability to fight back by voting them out, cutting off donations, or any other means of recourse. Even better, it presented Congress with an opportunity that those who oppose abortion have been desperately seeking: A chance to fast-track a case to the Supreme Court in an attempt to overturn Roe v. Wade.

Anti-choice activists have pinned many of their hopes of reversing the ruling on the so-called “Pain-Capable Unborn Child Protection Act,” a piece of legislation first introduced and passed in Nebraska in 2009. Under the legislation, abortion opponents claim that a fetus has the capability to feel pain at 20 weeks post-conception, making that a clear point in time at which abortion should be outlawed.

Although medical consensus among almost all obstetricians and gynecologists is that a fetus does not feel pain, and the few doctors and scientists who support the allegations are either against abortion or make their living by providing anesthesia during prenatal surgeries, the combination of Nebraska’s predominately anti-abortion legislature and unique unicameral state legislative system made passing the bill relatively smooth sailing.

Although the initial impetus behind the bill was to shutter the local clinic of Dr. Leroy Carhart – one of the few later-term abortion providers in the country – the law was also pushed for an alternative reason. Anti-choice advocates were hoping for a court challenge over the law’s constitutionality, as the new restriction would prohibit abortion after 20 weeks, over a month earlier than allowable under the standards set by Roe v. Wade

However, Carhart and the reproductive legal advocates in the state didn’t bite. The doctor began announcing plans to move his clinic across the river into the neighboring state of Iowa, where a similar law was proposed but did not pass. In the meantime, Idaho, Kansas, Alabama and Oklahoma passed bans of their own, and many others proposed legislation that either did not pass the legislature or was vetoed by the governors.

Each state used the same basic bill, drafted by the National Right to Life Committee and shopped around to willing sponsors. With multiple states passing legislation, the likelihood for a court challenge would increase. And, should the law get struck down as unconstitutional in one state, an appeal to a federal district court could bring a different outcome. Continue the appeals process and get a differing verdict in a different court circuit, and a trip to the Supreme Court is guaranteed.

This is the outcome the anti-choice groups have been eagerly trying to provoke, and the pro-choice organizations have been treading lightly around.

"I think they are really trying to bait us into rushing into court," Janet Crepps, deputy director of the US legal program at the Center for Reproductive Rights told Mother Jones last year. "We'll go when we're ready. We're not going to go just because they want us to."

But has their patience reached an end? It would appear so, based on Rep. Trent Franks’ introduction of the “District of Columbia Pain-Capable Unborn Child Protection Act.” Franks, an Arizona Republican House member, has taken on the task of telling District of Columbia women that they should no longer have the right to access an abortion after 20 weeks, even in cases of rape or health issues, or if the fetus is found to have a deformity.

Both Franks and the National Right to Life Committee justify their overreach into local matters by calling it “a matter of life and death.” But really, it’s a matter of legal positioning.

Because it is a district and not a state, Washington DC exists in a unique jurisdictional and constitutional space that makes its location especially juicy for those looking to press issues of constitutional law up through the federal courts. Like other federal jurisdictions, DC has a district court and an appellate court that can send a case involving a question of federal law before the Supreme Court for review. But on the “local” level, DC has only one court to hear appeals before a decision reaches the DC Circuit and then likely Supreme Court review. 

Put simply, DC can be a jurisdiction to fast-track constitutional challenges to existing law. With only one place for appeals, any challenge to a law is virtually guaranteed to go straight to the Supreme Court, which is exactly what the anti-abortion movement wants. If Franks and the National Right to Life Committee are able to get a relatively quick challenge to the constitutionality of the DC fetal pain bill then (like Casey v. Planned Parenthood) the path to eroding Roe becomes much clearer.

The National Right to Life Committee, as well as its anti-choice supporters, believes that if the case is brought before the court, it will get a ruling that would set the idea of “fetal pain” as a new precedent for deciding when the security of the fetus outweighs the rights of a woman to control her own body. Once that has been established in the courts, the next move will be to bring in yet another set of “experts,” who will state that 20 weeks development is actually a conservative estimate, and that in actuality the ability to feel pain occurs much earlier than believed. So long as there’s not another court decision conflicting that ruling, they can move forward with these bills -- and arguably the Constitution -- on their side. Should they face a legal challenge that brings a conflicting ruling, the answer is easy: petition the Supreme Court to review the matter and settle it once and for all.

In the meantime, the right is lining up its experts. The first to testify is Dr. Steven Zielinski, who gives varying points in development in the womb as being significant for the ability to feel pain, including 13.5 weeks, 8.5 weeks, and possibly even earlier. According to Zielinski and colleagues:

“The functioning neurological structures necessary to suffer pain are developed early in a child’s development in the womb…Functioning neurological structures necessary for pain sensation are in place as early as eight weeks, but certainly by 13 1/2 weeks of gestation. Sensory nerves, including nociceptors, reach the skin of the fetus before the ninth week of gestation. The first detectable brain activity occurs in the thalamus between the eighth and 10th weeks. The movement of electrical impulses through the neural fibers and spinal column takes place between eight and nine weeks gestation. By 13 1/2 weeks, the entire sensory nervous system functions as a whole in all parts of the body.” 

They had a game plan; all they needed was the sponsor, and that is where Franks was happy to step in.

Is Frank’s bill likely to pass? House passage is almost certain due to the Republican majority. It seems less likely to pass the Senate, where Democrats still hold power, but due to the number of Democratic senators who are anti-choice, such as Nebraska Senator Ben Nelson, it does stand a chance of making it through.

Then the question becomes whether President Barack Obama will veto the bill, acknowledging it as just another salvo in the GOP’s war on women, or allow it to stay in place due to election year pressure from those who oppose abortion and a desire to appeal to the elusive independent voters his campaign needs. Without a veto, a court challenge is inevitable. This is the kind of leverage Franks and other Republicans are counting on.

Just as anti-choice legislators took the Casey v. Planned Parenthood ruling that abortion can have reasonable limits within the first trimester to the utter extreme, imposing ultrasounds, parental notifications, counseling and now waiting periods that have expanded from 24 hours to as long as three days, they now hope to get a new verdict that will allow them a new timeline to begin rolling back the legal limit for getting a termination. With DC as their likely test case, a favorable ruling would mean that abortion will be banned across the country in all states after 20 weeks.

Then 13.5 weeks.

Then eight weeks. Or even sooner.

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