House Republicans Pass Unconstitutional, Doomed, Pandering Abortion Bill

As expected, the Republican-controlled House passed a bill that would ban most abortions after twenty weeks. It also happens to be completely unconstitutional and has no chance of actually becoming law.

United States Capitol Building, Washington, D.C. Aerial

As expected, yesterday the House of Representatives voted largely on party lines to approve a bill banning abortion nationwide after the 20th week of pregnancy notwithstanding the fact that there are serious doubts about the constitutionality of such a law:

The House on Wednesday passed a ban on abortions after 20 weeks of gestation, reviving a measure that had been abandoned earlier this year over concerns that it could hurt the Republican Party’s standing among female voters.

The bill, which Majority Leader John A. Boehner (R-Ohio) in a floor speech called “the most pro-life legislation to ever come before this body,” passed with the support of some GOP congresswomen who previously objected to the ban’s restrictions on rape victims. The congresswomen threw their support behind the measure after that wording was tweaked.

The bill seeks to ban any abortions beyond the midpoint of pregnancy — before a fetus is typically deemed viable, but after antiabortion activists say the fetus can feel pain. It faces an uphill course in the Senate, and President Obama has said he would veto it. But House passage of the measure had been a priority for antiabortion groups hoping to push the needle on public opinion and inject the issue into the 2016 presidential race.

“This legislation to protect the most innocent among us is an opportunity for clarity heading into the 2016 elections,” said Marjorie Dannenfelser, president of the antiabortion Susan B. Anthony List. “Protecting pain-capable babies and mothers at risk during a late-term abortion is a winning issue and one that has unified the entire Republican presidential field.”

But it received swift condemnation from Democrats, including Hillary Rodham Clinton. “The bill puts women’s health and rights at risk, undermines the role doctors play in health care decisions, burdens survivors of sexual assault, and is not based on sound science,” Maya Harris, senior policy adviser for Clinton’s campaign, said in a statement.

The legislation provides exceptions for victims of rape and incest, but the original version required rape victims to have reported the crime — a standard that critics viewed as too stringent because many never go to the police.

The version that passed on Wednesday removed the reporting requirement. But it added a 48-hour waiting period for rape victims during which they must undergo counseling. Abortion rights groups said that requirement makes the bill more burdensome than the original version.

Congress should defeat this dangerous and misguided bill and focus on moving forward, not backward,” Cecile Richards, president of Planned Parenthood Federation of America, told reporters earlier in the day in a teleconference.

Still, the change apparently satisfied some of the antiabortion lawmakers who balked at the original version, including Rep. Jackie Walorski (R-Ind.), who had removed her name as a co-sponsor of the bill in January. This bill “protects life, empowers women and will save lives,” Walorski said before casting a yes vote.

The final vote on the bill was 242-184, which is roughly the same as the partisan breakdown of the House, although there were four Republicans who voted no, four Democrats who voted yes, one Republican who voted “present,” and five Members of Congress who did not vote for one reason or another.

The biggest problem with this bill, of course, is the fact that there is simply no authority under the Constitution for Congress to ban abortion nationwide, something that The Volokh Conspiracy’s Jonathan Adler also argues in his post on the proposed legislation earlier this week. Given that this comes from the party that, for the past six years has complained about how the President and the Democrats in Congress have acted in contravention of the Constitution, it is at least ironic to see something like this passing so easily, and some would call it hypocritical. What it actually shows, of course, that in a competition between its supposed reverence to the Constitution and the desire to pander to the pro-life conservatives in the party’s base, Republicans will toss the Constitution out the window as easily as they claim Democrats do.

There’s no chance whatsoever that this bill will become law, of course. It’s unlikely to survive an expected Democratic filibuster in the Senate, and even if it did President Obama would most assuredly veto the bill, which would kill it  immediately since there obviously isn’t enough support even in the House to override such a veto. Republicans in Congress are obviously aware of this, but they believe that they can derive some kind of political advantage by pushing legislation such as this. In part, that advantage comes by taking an action that the pro-life base has been seeking Congressional action on for quite some time now. Additionally, though, they seem to believe that by forcing Democrats to take a vote on this legislation they will somehow gain some kind of advantage with voters heading into 2016. Whether that’s true, however, is exceedingly unclear. There is some polling that suggests that most Americans oppose late-term abortions in most cases, but it’s not clear from that polling that this translates into support for bans on abortion after twenty weeks, or that it’s the kind of issue that would cause them to vote Republican when they otherwise wouldn’t do so. More likely, the people that would support something like this are already inclined to vote for Republican candidates. What Republicans seem to be forgetting is that when they do take public stands on this issue, it tends to backfire them at election time with several crucial demographic groups. Perhaps that won’t happen this time, but if history is any guide the GOP may come to regret taking a stand like this.

FILED UNDER: Congress, Law and the Courts, Policing, US Constitution, US Politics, , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Jack says:

    So, Doug…what you are saying is that the Republicans are as bad as the Democrats.

    Thanks for the news.

  2. gVOR08 says:

    it is at least ironic

    So it’s fortunate Republicans have no sense of irony.

    What would you have them do, Doug? If they don’t run on this stuff they’d have run on their economic and foreign policy.

  3. Mu says:

    The really bad thing about this bill is that even if it’s (in my opinion) a reasonable compromise neither side would take it as “settled” if it became law. The evangelical and catholic churches would still insist on zero as the only acceptable number, and the progressive side would insist on any time, any reason.
    That’s why we can’t have nice stuff, unless my side wins 100% I lost.

  4. dennis says:


    Yep. Like Richard Mourdock, back in 2012, stating that compromise is Democrats giving in to Republican positions. My-way-or-the-highway thinking gets nothing accomplished. But the idiots keep voting them in …

  5. Blue Galangal says:

    @Mu: It’s not a reasonable compromise, however. When you are talking about fatal fetal abnormalities, some testing can’t be done until 18-20 weeks, and others aren’t found until later ultrasounds. The “reasonable compromise” is to acknowledge abortion is a legal procedure and, more to the point, a legal medical procedure, and let women and their doctors handle this within the confines of Roe v. Wade. Women don’t have abortions past 20 weeks for the fun of it.

  6. Mu says:

    @Blue Galangal: I thought it had a medical exception in it, but I admit as it’s doomed to failure I didn’t fully read it.

  7. michael reynolds says:

    The infrastructure in this country, from roads to bridges to airports to power supplies to train safety is a national embarrassment, but there’s not time or inclination to deal with any of that. Plenty of time for empty symbolic votes on Obamacare and abortion.

    Your GOP at work. Pandering to morons? Sure. Doing their jobs? Nope.

  8. HarvardLaw92 says:

    “Unconstitutional, doomed, pandering”

    I think that pretty much covers it.

  9. stonetools says:

    Here’s the problem. Doug somehow thinks that the Republican Party should be concerned with HIS goals-“tax reform”, business related stuff, whatever. The current Republican legislators-and I think rightly so-honestly believe they should legislate according to the concerns of the legislators’ CONSTITUENTS.Now as it happens, the legislators’ constituents do care more about abortion than they do about cutting taxes for billionaires, and various other traditional Republican concerns. (Of course, they care not at all about liberal concerns).

    Frankly, I am OK with legislators voting their constituents’ concerns. I hope my legislator would vote MY concerns. The problem is that the Republican constituents’s concerns are crazy and unconstiutional.

    The solution? Don’t expect Republican legislators to vote against the wishes of the people who voted them in. Frankly, you shouldn’t even want them to do this. What you need to do is to vote out the legislators who are beholden to the crazy constituents and vote in other legislators.

  10. grumpy realist says:

    The Republicans–forcing you to have doomed children since 1950!

    I find it exceptionally ironic because the same critters who insist on being so “pro-life” then immediately turn around and cut funds to any programs for disabled children. Dump the whole problem back on Mom ‘n Dad, I guess. It’s Gawd’s Will that they be on call 24/7 to take care of a mentally disabled child for the rest of their lives. At which point the whole problem gets dumped on….whom?

  11. al-Ameda says:

    Did anyone else notice that Republicans are so damned pro-life that they’re willing
    to allow women to get an abortion for up to 20 weeks? That’s 1+ trimesters. This is as close as they’ve come to a pro-choice position in years.

    Obama will, as he should, veto this bill in the 1st trimester. The GOP knows this bill is DOA, however they did this for the 2016 election, for their base. As the vote shows, everyone’s mind is made up on this, it’s all a matter of election 2016 optics and turnout.

  12. Paul L. says:

    Once again Doug shows he agrees with DNC chair Debbie Wasserman Schultz that abortion should be completely unregulated so you can abort a healthy 7 pound baby.
    Constitutional rights made out of shadow and penumbra are absolute. They override the Rights actually written in the Bill of Rights..

  13. al-Ameda says:

    @Paul L.:

    Once again Doug shows he agrees with DNC chair Debbie Wasserman Schultz that abortion should be completely unregulated so you can abort a healthy 7 pound baby.

    How many healthy 7 pound babies have been aborted for reasons that have nothing to do with the life/health of the mother?

  14. Monala says:

    @Blue Galangal: I would add that most abortions, period, aren’t done for the fun of it. The difference is, most abortions prior to 20 weeks are done because the woman doesn’t want to be pregnant. Most abortions done after that are wanted pregnancies in which something went horribly wrong.

  15. C. Clavin says:


    So, Doug…what you are saying is that the Republicans are as bad as the Democrats.

    Actually, what he said is:

    Republicans will toss the Constitution out the window as easily as they claim Democrats do.

    Remedial reading classes are generally available at your local community college. If you live in a Red State you may want to enroll before your Republican-led Government slashes funding to that institution in order to give more tax cuts to the wealthy.

  16. Paul L. says:

    Maybe 80 in Kansas in 2003. But like Wayne Allen Root:and his IRS case file, you can’t see those records.

    You can not ban abortion after 20 weeks but 5 gallon toilet tanks and 75 watt light bulbs are a menace that must be stopped.

  17. grumpy realist says:

    @Paul L.: There’s this little thing in law called self-defense. Maybe you’ve heard of it?

    Or do you not consider women to be human?

  18. C. Clavin says:

    @grumpy realist:
    Not to mention the chubby they get over capital punishment, and un-necessary war along with a side-order of torture.

  19. KM says:

    The reason they absolutely MUST attribute some malice or blame to the woman in regards to late-term abortion is that the very concept challenges their most dearly held belief: embryo -> fetus-> baby therefore embryo=baby and that a pregnancy’s natural and default conclusion is birth. To them, if you are pregnant, you will therefore give birth and complications that prevent that are rare and abnormal. This is not true and anyone with a smidgen of medical and historical knowledge acknowledges it. People have no idea how common miscarriages really are; there’s a reason why every culture in the world until extremely recently didn’t acknowledge you were a person until some point after you’d been born.

    To allow late-term abortions is to admit that the process is inherently problematic and dangerous with no guarantee of results. That just become one comes closer to the deadline does not mean one will successfully achieve the goal. That possible =/= probable and potential sometimes never bears fruit. Since their whole argument is life is begins at some point before birth, they cannot allow the notion that potential you is not guaranteed to be actual you. So for the procedure to be needed so late, the blame must be on the woman, not the failed biological process that prompted the choice. The ideology requires it as a corollary to the principle that pregnancy=birth. In other words, “your pregnancy didn’t fail Madame, you did”. They’d rather see it through to the bitter end, regardless of the pain and suffering it causes, then admit their belief system is flawed.

  20. humanoid.panda says:

    @Paul L.: Yes, if there is one person Obama will risk his presidency to get it’s Wayne “Obama didn’t actually attend Columbia because I didn’t meet him or maybe perhaps a foreign exchange student, because why not?” Root. He is a dangerous voice to be silenced, and not at all someone whose ravings are a huge net benefit to Obama!

  21. humanoid.panda says:

    @humanoid.panda: This is the very lesson people like Paul L refuse to understand: the people who feed them insane conspiracy theories about Obama are de-facto allies of the administration. Had Romney won in 2012, Root would have to go find a job. Now, he is an anti-IRS dissident!

  22. grumpy realist says:

    @KM: heck, if pregnancy worked the way Paul L. thinks it does my mother wouldn’t have had two stillbirths.

    So what are you going to do? Throw her in jail for accidental manslaughter?

  23. al-Ameda says:

    @Paul L.:

    But like Wayne Allen Root:and his IRS case file, you can’t see those records.

    Wayne Allyn Root? A radio jock who has the support of all major ODS outlets: The Blaze, Fox News, and NewsMax to name a few. Did the IRS actually investigate Mr. Root? Well, Root certainly hopes so, that’s for sure.

  24. Blue Galangal says:

    @grumpy realist: Yeah, I had five pregnancies and carried two to term. One was a late 2nd trimester miscarriage. Guess I should be in jail. Or maybe God should be in jail. I’m never clear on that.

  25. Blue Galangal says:


    I thought it had a medical exception in it, but I admit as it’s doomed to failure I didn’t fully read it.

    There’s a medical exception for life of the mother but as far as I can tell, doesn’t mention FFA. I’d also note the other danger of this pseudo-science bill is that it redefines pregnancy from fertilization, which actually puts the limit at 18 weeks as we commonly understand pregnancy, not at 20 weeks. It’s just a little bit more restrictive and is attempting to establish in law – I think – that life begins at fertilization, not implantation, thus giving them the ability to argue against more birth control methods.

    (i)in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions; or
    (ii)the pregnancy is the result of rape, or the result of incest against a minor, if the rape has been reported at any time prior to the abortion to an appropriate law enforcement agency, or if the incest against a minor has been reported at any time prior to the abortion to an appropriate law enforcement agency or to a government agency legally authorized to act on reports of child abuse or neglect.


  26. grumpy realist says:

    @Blue Galangal: The bill also shows that they don’t have the courage of their own convictions. If you really believe that the fetus is a life-from-conception you’re not going to allow any exceptions for rape. So what they’re showing straight out is that this is in order to punish a sexually active woman, full stop.

    (I always wondered what the pro-lifers would do if they were presented with a medication that would get rid of all miscarriages but increase birth defects.)

  27. Ken says:

    @Paul L.: Once again Doug shows he agrees with DNC chair Debbie Wasserman Schultz that abortion should be completely unregulated

    I don’t know if this particular post is real, or a Poe, but
    This is what wingnuts actually believe

    Is it any surprise that it’s damned near impossible to compromise with the modern Republican party? How the hell do you reach a compromise with someone whose starting position is 1+1 = potato? Pandering to the lunatics of the religious right was the nose of the camel, and 30 years of … ahem… “progress” has shown it to be one of the stupidest political mistakes imaginable. It will be a millstone around the neck of American politics for decades to come

  28. Kari Q says:

    @Paul L.:

    “Maybe” 80 cases is the same as “none that we are sure of.”

    I will admit that there are rare occasions when a woman will abort a healthy fetus after 20 weeks, but that is because the expense and legal roadblocks put in her way prevented her from having the procedure earlier.

  29. harvardLaw92 says:

    Somewhat OT, but it’s good info:

    Feingold announced today that he will be challenging Ron Johnson for Wisconsin’s Class 3 Senate seat.

    Best of luck, Russ. I’ll be sending a check.

  30. grumpy realist says:

    @Paul L.: Show me where it says in the Constitution “I have the right to commandeer someone else’s body organs to support my own life.”

    We don’t have forced organ donation in this country, jackass. Perhaps you’d prefer to move to China, where they execute criminals and sell their organs?

  31. Tillman says:

    One question: I was under the standing that the House now had to cite the part of the Constitution the authority for a bill came from. It was supposed to be constituency-pleasing because people thought Obama trampled the Constitution. What was the citation for this one? Or have they stopped doing this because, let’s face it, why bother? That’s why you have a judicial system.

  32. C. Clavin says:

    @Blue Galangal:
    God. Definitely God.