The looming battle over PA's latest abortion restriction bill

The hammer came down last month on the Lone Star State when, in a 5-3 vote, the U.S. Supreme Court ruled that parts of a Texas law that would have reduced the number of abortion providers in the state by imposing stricter medical requirements were unconstitutional.

The decision was felt across the country, including in Pennsylvania, which is considering a similar piece of legislation.

If approved, H.B. 1948, which was passed by the state Senate Judiciary Committee last week, would be among the strictest anti-abortion laws in the nation. It would scale back the availability of legal abortions from six months after fertilization to five, mandate spousal approval and require that a second physician be present in case the fetus survives the abortion, among other provisions. A violation would be a third-degree felony, punishable by up to seven years in prison and a $15,000 fine.

The bill also includes language its sponsor, state Rep. Kathy Rapp (R-65), acknowledges is not recognized by the medical community.

Rapp, the Pro-Life Caucus Chair in the state House of Representatives, contends that when the Supreme Court’s landmark Roe v. Wade decision, which enshrined abortion rights, was rendered in 1973, abortion was supposed to be rare.

Rapp said she and her colleagues in the Pro-Life Caucus began reassessing the abortion issue as soon as the 2016 legislative session started.

“We started looking at what’s going on across the nation as far as pro-life issues,” she said.

“The number of abortions since 1973 is 59 million,” she added. “I don’t consider 59 million abortions rare.” (Rapp said that figure came from the Guttmacher Institute, a national research center for sexual and reproductive health, and the Centers for Disease Control.)

Rapp declined to say if laws in other states influenced the drafting of her bill, although there is no shortage of recent legislation she and her colleagues could have drawn from.

In May, Oklahoma’s governor vetoed a controversial bill that would have made it a felony to perform an abortion.

Under a law in Louisiana – which has been temporarily blocked by the Supreme Court – doctors who perform abortions must have admitting privileges at a hospital within 30 miles of their clinic. Mississippi, Missouri and Kansas have similar laws.

Critics of H.B. 1948 argue that, among other flaws, it refers to “dismemberment abortions,” instead of the accepted medical term of dilation and evacuation, the practice of dilating the cervix and extracting what’s inside; its terms place new restrictions on a woman’s ability to have an abortion; and the measure passed through the House with lightning speed and without a public hearing.

Gov. Tom Wolf has threatened to veto it if it reaches his desk.

“This legislation would be a step backwards for women and for Pennsylvania,” Wolf said in a statement after its House passage. “If it passes the House, I urge the Senate to reject it. If this legislation reaches my desk, I will veto it. This is a bad bill for Pennsylvania and we cannot afford to allow it to go forward.”

It’s unclear what the Senate will do in terms of when members will vote on H.B. 1948. According to one source in the House, once the state budget is voted on, the House typically adjourns for most of the summer, but the Senate could reconvene in the coming weeks to vote
on the matter.

On June 30, state Sen. Daylin Leach and state Reps. Dan Frankel and Tim Briggs, among others, called on the General Assembly to stop movement on any proposals that would limit access to abortion in light of the Supreme Court’s ruling that these kinds of bills do not meet constitutional muster.

Opponents of the bill don’t mince words about the draconian nature of H.B. 1948 and its ramifications.

“Pennsylvania would have the most restrictive abortion ban in the country, should this go through,” said Selina Winchester, associate director of external affairs for Planned Parenthood Keystone.

“‘Dismemberment’ is an inflammatory term – it’s meant to rouse up (Rapp’s) base. This is not a medical term that’s used at all,” said Winchester, who argued that fetal anomalies, many of which are “not compatible with life,” don’t show up on ultrasounds until after the 20th week of pregnancy.

“It doesn’t make any sense,” she said. “One percent of abortions are performed after 20 weeks … and it’s almost always (because of) a fetal anomaly.”

Rapp defended her bill by saying that many pieces of legislation are passed without public hearings or input from medical professionals, such as the medical marijuana bill recently signed by Wolf.

Rapp said the same people who argued against her bill for not having doctors weigh in used the same argument when it came to medical marijuana.

“We could bring in all kinds of doctors on both sides of the issue. We could talk to Kermit Gosnell” – who was convicted of murdering infants in his West Philadelphia clinic during illegal late-term abortions – “if we wanted to,” she said.

“We just passed medical marijuana…these (critics) are the same people who said it wasn’t necessary to have the medical people weigh in on medical marijuana.”

As for her use of the term “dismemberment abortions” – which her bill defines as “the act of knowingly and purposefully causing the death of an unborn child by means of dismembering the unborn child and extracting the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments,” Rapp shrugged it off as semantics.

“If it bothers the medical community, so be it,” she averred, “but there are former abortionists who use that term – dismemberment. For the public to understand that abortion method and procedures, that is exactly what happens – it is a dismemberment.”

In a letter dated April 4, Scott Shapiro, president of the Pennsylvania Medical Society, asked state representatives to vote down H.B. 1948 because he believes the legislation “interferes with the relationship between physicians and their patients.”

“House Bill 1948, if approved, would significantly jeopardize the open dialogue within the physician/patient relationship … a relationship that is the very foundation upon which modern medicine was built,” he wrote. “We urge you to join us in preserving the ability of patients and their physicians to make their own medical decisions and to thwart any effort that may erode that freedom.”

State Rep. Jordan Harris (D-186), who voted against the bill, called it “just another attempt to attack a woman’s right to choose.”

“This could be devastating for women and men – for people, in general, across the commonwealth,” he continued. “The last thing we need to be doing is dealing with the most restrictive abortion bill in the country and go backwards as far as a woman’s ability to seek medical treatment, and that’s what this is – a strict decision between a woman and a medical professional. For me, the government should stay out of that and let the medical professionals do their job.”

Less than a week after the Supreme Court ruling in the Texas abortion case, Whole Woman’s Health v. Hellerstedt, the National Constitution Center hosted a debate on the issue among top legal scholars and advocates.

Clarke Forsythe, acting president and senior counsel with Americans United for Life, an anti-abortion public interest law firm based out of Washington, D.C., argued that abortion was the only medical procedure in the country that was actually a constitutional right.

The Supreme Court ruling “was a horribly tragic and unfortunate decision,” he said.

“There is no other medical procedure in this country that is a medical right, and what that means is that courts sit in judgment on abortion legislation, unlike any other type of legislation regulated. The Supreme Court established itself as the National Abortion Control Board – it sits as responsible for every regulation, in every clinic, coast-to-coast and whether (the fetus) survives or doesn’t survive, it scrutinizes it.

“Unlike health and safety regulations for any other medical procedure in this country, the Court is incompetent to do that. The judges are incompetent to do that. They are as responsible for Kermit Gosnell as for any other conditions in any other clinic anywhere in this country.”

Kathryn Kolbert, a political science professor at Barnard College in New York City, who argued in favor of abortion rights at the event, served as counsel on behalf of the petitioners in Planned Parenthood v. Casey. She said there are currently more than 1,000 laws against abortion on the books nationwide.

“The Court really said very strongly that they’re not going to give deference to state legislative judgments about medical decision-making and facts, when, in fact, they operate differently in the real world,” she offered.

“They looked closely at the medicine behind this. Frankly, there’s not a lot of dispute about the medicine. There are people on one side of the issue who oppose abortion, who don’t do abortions, who talk about medicine, but, for the most part, the medical community is very supportive of the pro-choice position, and very much against these types of laws.

“The issue is, should legislatures or should courts make these judgments about what the medical underpinnings are? In my view, courts, which actually look at the facts, as opposed to politics, are, at least, better. I’d prefer the legislatures didn’t mess in this area at all, but assuming they do, it seems to me – and assuming there’s a history of antagonism against exercising these rights in this area – I think courts are better to do it than the legislature.”

State Rep. Leanne Krueger-Braneky, a Delaware County Democrat, was the first to step to the House floor to challenge the bill upon presentation to her colleagues before the Committee on Health back
in April.

“I was told there were very private meetings,” said Krueger-Braneky. “When I asked if doctors had been consulted, I was told yes. When I asked if they were Pennsylvania-based doctors, (Rapp) wasn’t sure. When I asked if those doctors were members of the Pennsylvania Medical Society, (Rapp) said she wasn’t sure.”

Krueger-Braneky criticized Rapp and her Republican co-sponsors of using scare tactics to drum up votes for H.B. 1948, which passed by a 140-58 vote. 

“This is a commonly accepted procedure that is often the safest procedure for women who need to choose an abortion after 13 weeks of pregnancy, and the rhetoric on the floor was highly charged,” she said. “I do believe that votes were not cast in the interest of what’s best for women
in Pennsylvania.”

She admitted, however, that she and her Democratic colleagues were not blindsided by the measure; on the contrary, they’re often on the lookout for “these types
of things.”

“I believe that people were legislating their own moral priorities,” she said.

“Fetal abnormalities are typically not detected until a woman has an ultrasound at 20 weeks. My understanding is they’re much harder to detect, and so this legislation would force women to detect fetal abnormalities that are not compatible with life, after a 20-week ultrasound, to carry these pregnancies, until either the fetus dies inside of them or until they give birth to a baby with horrible birth defects. It’s incredibly cruel. There is no exception in this bill for rape, incest
or fetal abnormalities.”

But Rapp disagreed.

“I believe that abortion devalues human life,” she opined. “And I am a believer that life is God-given. When we devalue either the unborn or any people on this earth, we walk a fine line then of devaluing the next group of people, including the unborn.”

Rapp implied that the Supreme Court ruling would not impact H.B. 1948 as much as it would the state’s 2011 Health Care Facilities Act, which requires facilities that provide abortion services to meet the same standards as ambulatory surgical centers.

As chairman of the House Health Committee, state Rep. Matt Baker (R-68) authored the bill that found passage thanks in part to the revelations of what happened in Gosnell’s “house of horrors”
abortion clinic.

When asked about new challenges to his legislation, Baker said there are “major distinctive differences” between Pennsylvania’s laws and the Texas provisions that were struck down, noting that Pennsylvania does not require clinics to have admitting privileges at a hospital within 30 miles, and that waivers are available here, unlike in Texas.

“We issue waivers and tier the abortion facilities based on the anesthesia,” he explained. “That reflects the seriousness of the procedure. Texas did not have that.” ■