In a parting gesture by social conservatives before Republicans relinquish control, House leaders plan to bring up a bill tomorrow that would declare that fetuses feel pain and require abortion providers to offer pregnant patients anesthesia for their unborn child.
The scheduled vote may be the last on abortion-related legislation for years. That's because Democratic leaders hope to avoid confrontations over hot-button social issues that divide their caucus, and focus instead on military and pocketbook issues.
But Republicans and antiabortion activists signaled yesterday that they intend to press hard on social issues, even those that failed to gain traction during Republican control, to separate moderate-to-conservative Democrats from their more liberal leaders.
"The Democrats are facing an interesting situation because they ran to the right in this election," said Wendy Wright, president of the conservative group Concerned Women for America. "They promised one thing to America with their campaigning. The question is, will they live up to that image? Running and hiding is not a solution."
Democrats are shying from the fight. House Democratic leaders have declared tomorrow's decision "a vote of conscience" and will not try to sway the outcome. House Speaker-elect Nancy Pelosi (D-Calif.) does not plan to speak on the bill, a rarity for her.
The fetal pain bill is coming up nearly as an afterthought, in the final week of a lame-duck session of Congress. House Republican leaders are using expedited procedures to bring it to a vote, meaning it will take a two-thirds vote of the House to pass. Its supporters are setting expectations low.
"Hopefully we get a majority," said Rep. Christopher H. Smith (R-N.J.), the bill's author. "Two-thirds is hard on anything, except if it's a post office."
Even if the bill can muster a two-thirds vote, it cannot pass the Senate before Congress adjourns.
Chance for a test
But social conservatives see an opportunity to test Democrats' evolving position on abortion, a position that has become more amenable to incremental curbs on ending pregnancies and more vocal about reducing the number of abortions. Under Republican control, Congress passed a ban on the late-term abortion method called "partial birth" abortion by its foes and passed the Unborn Victims of Violence Act, which increased penalties for crimes that harm a fetus.
At first blush, the Unborn Child Pain Awareness Act would seem to be anathema to abortion rights groups. It requires abortion providers to tell women whose pregnancies are 20 weeks past fertilization that "there is substantial evidence" that the fetus will feel pain during the procedure, a point that is hotly debated among physicians and pain specialists.
The women would then have to sign a form accepting or declining anesthesia for their fetuses. Some medical groups interpret the language to mean that the fetus would have to have an application of anesthesia separate from the mother's, a procedure that many abortion clinics are not capable of providing.
Even the bill's definition of pregnancy — beginning at the moment of fertilization, rather than at implantation in the uterus — is problematic to some abortion rights groups, since it would legislatively establish that some forms of birth control induce abortion by blocking implantation after fertilization.
Backers of the bill have framed it as a common-sense extension of existing state laws that mandate that patients receive information about abortion procedures before giving their consent.
"This is just a compassion piece of legislation to take informed consent to the level it should be at," said Rep. Phil Gingrey (R-Ga.), an obstetrician and antiabortion conservative.
Not all abortion rights groups oppose
While the measure has provoked strong opposition from Planned Parenthood and the National Abortion Federation, NARAL Pro-Choice America, perhaps the nation's leading abortion rights group, has stayed neutral.
"Pro-choice Americans have always believed that women deserve access to all the information relevant to their reproductive health decisions. For some women, that includes information related to fetal anesthesia options," Nancy Keenan, NARAL's president, has said in a statement on the bill.
Democratic leaders cited NARAL's position when they decided against trying to influence the vote. Democratic leadership aides said yesterday that they are leery of Republicans charging that they are already out of touch with mainstream values, even before they assume power.
Citing those divisions, the National Right to Life Committee's Douglas Johnson dared Democrats to vote against the bill. If it passes the House, Sen. Sam Brownback (R-Kan.) will try to pass it in the Senate by a unanimous voice vote.
"Somebody will object," Johnson said. "We want to know who that person is."