The House GOP’s Tactics for Passing an Unconstitutional Abortion Ban

Who's winning, who's losing, and why.
June 18 2013 9:17 PM

Trent Franks Feels Your Pain

The GOP’s tactics for passing the Arizona congressman’s unconstitutional abortion bill.

Rep. Trent Franks, R-Ariz., attends a House Armed Services Committee markup of the National Defense Authorization Act for FY2014 in Rayburn Building.
Rep. Trent Franks's abortion-ban bill was up for a vote on Tuesday

Photo By Tom Williams/CQ Roll Call/Getty Images

It’s the day of the vote for one of the biggest bills of his career, and Arizona Rep. Trent Franks has been sidelined. The Pain-Capable Unborn Child Protection Act (no easy acronym), which had been a pipe dream in the last Congress, was coming to the floor and expected to pass. The trial of Philadelphia’s illegal-late-term abortionist Kermit Gosnell, and the attendant gross-out media attention, powered the bill out of committee. So, typically, the bill’s author would lead the debate on his product.

David Weigel David Weigel

David Weigel is a reporter for Bloomberg Politics

Alas. During the bill’s last mark-up, Franks had chastised Democrats for trying to “make rape and incest the subject” of the abortion debate. “You know,” he’d said, “the incidences of rape resulting in pregnancy are very low.” He’d defied the First Commandment of post-2012 Republican politics: Thou Shalt Not Mention Rape, Especially if Thou Ist a Guy. Franks bowed to reality and allowed Rep. Marsha Blackburn, a Tennessee conservative with a winsome TV presence, to lead the debate.

Outside the House chamber, I ask Franks if he’d really wanted to leave the game with the ball sitting on the 1-yard line.

“Absolutely!” says Franks. “We’ve always wanted as many of the women of this House as possible to speak on the bill. The women of this country, and I think even the women of the House of Representatives, are more pro-life than the men are. The hope is to take away some of these ancillary arguments that have nothing to do with the bill.”

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But the cornucopia of “ancillary arguments” never runs out. Democrats faced the Pain-Capable bill with a strategy honed in 2011 and 2012. The tattered cover of the playbook reads: “War on Women.” The ability of these Democrats to turn every abortion debate into a Republican embarrassment astounds the GOP. Even a bill like this, which shifts the “Overton window” and gets Congress talking about “fetal pain,” is weaponized against the GOP.

“They're not debating the issue,” sighs Louisiana Rep. John Fleming. He’s a medical doctor, so he’s been placed in the live-on-C-Span speaker rotation in favor of the bill, along with the GOP’s women. “[Democrats] want to dwell on how many men are on the Judiciary committee. They bring up War on Women, or they bring up Sandra Fluke. I mean, it's like they're bringing up all of the buzzwords just because they think that they can get some response from their base.”

On the floor, Fleming tells the Democrats what they should be talking about. He describes an ultrasound he saw recently, a fetus “holding up two fingers as if to say, ‘Be patient I'll be out soon.’ ” Then he describes an abortion. “Sticking a trocar into the skull, sucking the brain out. What torture!”

Congressional Democrats dismiss this, because they can. Their party runs the Senate, and their president has already issued a perfunctory veto threat of a bill that will never make it to his desk. Their comrades in the states aren’t this lucky. The anti-abortion movement’s campaign—using Gosnell as the face of legal abortion—has helped along new restrictions and fetal-pain laws in GOP-controlled legislatures. Their goal is to pass a law that bans abortion before “viability of the fetus,” basing it on the new and scientific-sounding standard of fetal pain, and winning a Supreme Court test. They’ve failed so far, and a 20-week ban in Franks’ own Arizona was struck down just this year, but he’s ready to lose and lose and lose and then win.

“If you harken back to the partial birth abortion bill,” he says, “oh, everybody said—it’s not constitutional! It can’t pass! It can’t go anywhere. It took time to do it, and it even had to survive a presidential veto, but it eventually passed.”

Democrats know that too. They’ve also read the bill, which does more than stop the clock for legal abortion at 20 weeks. The legislation insists that “by 8 weeks after fertilization, the unborn child reacts to touch.” That’s a hole some future conservative is ready to drive a truck through.

So Democrats spent Tuesday dog-piling Republicans and asking that essential political question, so well captured in the 2012 election: What about your gaffes? At a morning press conference, a dozen female Democratic House members spent 30 minutes running through the outrages committed by Republicans. Among them: They allowed the bill to be written by “the all-male [Republican] members of the House Judiciary committee.” Rep. Debbie Wasserman Schultz, chair of the Democratic National Committee, insists that “the Republican men who brought this to the floor do not represent the rights of women in America.”

In some ways the press conference is a bust. There are no TV cameras in the room, which is so unusual that staffers and reporters who are walking to their seats duck, as if the cameras are still there. When the speeches end, the very first question comes from a conservative, or at least someone playing devil’s advocate and asking Democrats to apply the test they used for this year’s gun legislation.

“Democrats said that even if it saves one life, it’ll be worth doing,” asks a reporter. “Why not support this bill then, if it undoubtedly will save the lives of babies carried through five months of pregnancy?”

Colorado Rep. Diana DeGette, who’s running the event, pauses to think about this. “Well, this is—we already have laws in many states in this country. This bill is blatantly unconstitutional, and if you look at the stated reason of doing this legislation, the Kermit Gosnell case, that gentleman was convicted and sentenced to life. Are there are any other questions?”

The conservative tries to follow up her admittedly leading question. “No,” says DeGette. “Are there are any other questions?”

There is, but it’s from another conservative who wants to know if there are any abortion limits the Democrats could consider.

“The Supreme Court has spoken, and this bill is unconstitutional,” says DeGette. “One last question.”

The last question turns out not to be a question at all but a chance to dig at Franks and his reduced role in the debate. Republican Rep. Virginia Foxx chokes back tears as she reads a prepared statement about how the skeptics “simply refuse to acknowledge we're dealing with human life in this situation of abortion.”

Finally it’s time for the debate on the bill itself. Rep. Marsha Blackburn stands at the front of the Republican rows. Nearly all of the House GOP’s 19 women line up to speak, and very few men join them. Woman after woman in colorful blazer-skirt combos stands up to chide Democrats for minimizing the ugliness of abortion.

Trent Franks sits near the back of the room, saying nothing and not needing to.

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