Pa. House passes veto-bound abortion bill amid constitutionality questions

This article appeared on PA Post.

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For the second year in a row, House lawmakers have voted for a bill that would punish doctors who perform abortions based on a Down syndrome diagnosis.

It isn’t intended to penalize the women who seek these abortions, but it carries hefty consequences for the doctors who might carry them out: a potential third-degree felony charge and suspension or revocation of the doctor’s medical license.

The margin of passage — 117 yeas and 76 nays — was slimmer than last year’s 139-to-56 vote, thanks in large part to a crop of new Democrats who were elected to the chamber in the 2018 midterm election.

Debate lasted more than two hours.

Supporters of House Bill 321, like York County Republican Kate Klunk, who sponsored it, cast it as a matter of human rights.

“I believe we have a responsibility to stand up against the horrible practices of societal genetic engineering,” she told her colleagues — referring to abortion practices in countries like Iceland, which reports a nearly 100 percent rate of termination for pregnancies in which Down syndrome is detected through voluntary prenatal screenings.

Other supporters of the bill, like Warren County Republican Kathy Rapp, invoked religion.

“In Deuteronomy 31:19, it states, ‘this day I call the heavens and the earth as witnesses against you that I have set before you life and death, blessings and curses. Choose life so that you and your children may live,” she read. “Please support this bill.”

Though supporters of Klunk’s bill placed Down syndrome at the center of the conversation, it unfolded like most abortion debates do in the legislature.

The issue isn’t completely partisan in Pennsylvania, but Democrats generally argued that abortion is an essential right while most Republicans held that the practice is morally wrong.

Allegheny County Democrat Dan Frankel went to the Legislative Reference Bureau, which drafts bills, for an expert opinion.

Lawyers there found the bill unconstitutional, saying it could burden women who want pre-viability abortions.

They noted, the relevant US Supreme Court ruling, 1992’s Planned Parenthood v. Casey, holds that a state “may not prohibit a woman from obtaining an abortion before the unborn child has reached viability,” nor may it “impose an undue burden upon a woman’s ability to obtain a pre-viability abortion.”

The bureau argued that because HB 321 doesn’t differentiate between abortions performed pre- and post-viability, it is most likely unconstitutional and would not survive a court challenge if it were to become law.

That guidance, Frankel said, “is crystal clear. It’s unambiguous.”

“We all have strong opinions on this issue,” he continued. “This is not something we as a legislature should be doing when it is clearly unconstitutional.”

Supporters of the bill noted, the bureau’s opinion isn’t binding. And Bryan Cutler, the Republican House Leader, said he believes the legislation is “consistent with existing case law that already exists regarding sex selection.”

That sex-selection law in Pennsylvania’s Abortion Control Act has not been challenged in court. In its opinion, the Reference Bureau noted that it likely would be overturned alongside the Down syndrome restriction, were that bill to pass and become law.

The process is unlikely to get that far, however.

Governor Tom Wolf opposes HB 321, and has said he will veto it if the Senate passes it to him.

In a statement, a spokesman said the bill is “a Trojan horse: it simply disguises another attempt to ban abortions and put politicians between a woman and her doctor.”

For the second year in a row, House lawmakers have voted for a bill that would punish doctors who perform abortions based on a Down syndrome diagnosis.

It isn’t intended to penalize the women who seek these abortions, but it carries hefty consequences for the doctors who might carry them out: a potential third-degree felony charge and suspension or revocation of the doctor’s medical license.

The margin of passage — 117 yeas and 76 nays — was slimmer than last year’s 139-to-56 vote, thanks in large part to a crop of new Democrats who were elected to the chamber in the 2018 midterm election.

Debate lasted more than two hours.

Supporters of House Bill 321, like York County Republican Kate Klunk, who sponsored it, cast it as a matter of human rights.

“I believe we have a responsibility to stand up against the horrible practices of societal genetic engineering,” she told her colleagues — referring to abortion practices in countries like Iceland, which reports a nearly 100 percent rate of termination for pregnancies in which Down syndrome is detected through voluntary prenatal screenings.

Other supporters of the bill, like Warren County Republican Kathy Rapp, invoked religion.

“In Deuteronomy 31:19, it states, ‘this day I call the heavens and the earth as witnesses against you that I have set before you life and death, blessings and curses. Choose life so that you and your children may live,” she read. “Please support this bill.”

Though supporters of Klunk’s bill placed Down syndrome at the center of the conversation, it unfolded like most abortion debates do in the legislature.

The issue isn’t completely partisan in Pennsylvania, but Democrats generally argued that abortion is an essential right while most Republicans held that the practice is morally wrong.

Allegheny County Democrat Dan Frankel went to the Legislative Reference Bureau, which drafts bills, for an expert opinion.

Lawyers there found the bill unconstitutional, saying it could burden women who want pre-viability abortions.

They noted, the relevant US Supreme Court ruling, 1992’s Planned Parenthood v. Casey, holds that a state “may not prohibit a woman from obtaining an abortion before the unborn child has reached viability,” nor may it “impose an undue burden upon a woman’s ability to obtain a pre-viability abortion.”

The bureau argued that because HB 321 doesn’t differentiate between abortions performed pre- and post-viability, it is most likely unconstitutional and would not survive a court challenge if it were to become law.

That guidance, Frankel said, “is crystal clear. It’s unambiguous.”

“We all have strong opinions on this issue,” he continued. “This is not something we as a legislature should be doing when it is clearly unconstitutional.”

Supporters of the bill noted, the bureau’s opinion isn’t binding. And Bryan Cutler, the Republican House Leader, said he believes the legislation is “consistent with existing case law that already exists regarding sex selection.”

That sex-selection law in Pennsylvania’s Abortion Control Act has not been challenged in court. In its opinion, the Reference Bureau noted that it likely would be overturned alongside the Down syndrome restriction, were that bill to pass and become law.

The process is unlikely to get that far, however.

Governor Tom Wolf opposes HB 321, and has said he will veto it if the Senate passes it to him.

In a statement, a spokesman said the bill is “a Trojan horse: it simply disguises another attempt to ban abortions and put politicians between a woman and her doctor.”

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