In mid June 2013, a group of female Republican legislators met with leadership and House aides for a last-minute messaging session about a 20-week abortion ban that was on life support.
The author of the Pain Capable Unborn Child Protection Act, Representative Trent Franks (R., Ariz.), had made headlines just days earlier while defending its lack of exceptions for rape or incest. “The incidence of rape resulting in pregnancy [is] very low,” he’d said during a Judiciary Committee debate on the legislation. Coming just months after two Republican candidates, Todd Akin and Richard Mourdock, fumbled away their Senate bids with careless talk about rape and abortion, Franks’s remarks had incensed the very group of female House lawmakers whose support he needed most.
“They were furious,” one House Republican aide recalls.
That conflict resurfaced during the March for Life two weeks ago, when House leadership canceled a long-scheduled vote on the very same 20-week ban. The bill’s latest failure comes at a time when the pro-life movement’s hopes for legislative progress in the new GOP Congress are as high as they’ve been in years, and it has exposed a simmering rift in the House Republican conference.
The bill fell apart after several female GOP lawmakers protested a provision that would require victims of rape to report the crime to law enforcement if they wish to have a late-term abortion under the law. In public, Representative Renee Ellmers (R., N.C.) got much of the blame for torpedoing the ban. She defended herself by arguing that the GOP needs to avoid alienating young voters. “When we come off as harsh and judgmental, we stop that conversation, and we’ve got to learn to be doing a better job,” she told reporters on January 22, the day of the March for Life. To explain why she had voted in 2013 for the putatively harsh law — a law identical to the one under consideration two weeks ago — Ellmers said she hadn’t known that the bill contained that notification provision because it “wasn’t evident in the base language of the bill.”
Behind the scenes, National Review Online has learned, an aide to the congresswoman conceded that Ellmers knew the bill contained the controversial language; she accused pro-life activists of putting Republicans in a difficult political position, however, and trashed Franks’s actions to a constituent.
The staffer said that Franks had inserted the reporting requirement into the bill in an effort to mollify pro-life groups who opposed the rape and incest exceptions. “The problem here is, you’ve got the Left — you’ve got the pro-life groups in addition to pro-choice groups playing politics, and they’ve thrown that into a bill to convolute it when it’s supposed to protect a five-month old baby from being aborted,” the aide said during a phone call, which was recorded and obtained by National Review Online. (Listen to the full audio here.)
“Anybody that’s not on the Rules committee wouldn’t have had enough time to review this thoroughly, and it was never vetted properly,” the aide said of the reporting rule. “This was a GOP member of congress that introduced this legislation; he was not even talking to his own party,” she said of Franks. (GOP sources tell NRO it was actually then–House majority leader Eric Cantor who added the reporting requirement as an amendment to the late-term abortion ban.)
While expressing frustration with Franks, the Ellmers aide conceded that, despite the lack of vetting, Ellmers did know of the reporting requirements and opposed them. According to the aide, the North Carolina congresswoman, who narrowly beat back a primary challenge last year, voted for the bill in 2013 because she expected the issues to be “ironed out” this year.
#page#NRO provided Ellmers’s office with a transcript of the aide’s comments and asked for confirmation of the conversation. A spokeswoman for Ellmers replied in a statement:
Given that the NRO would not release the audio file to our office, we are not able to confirm the veracity of this tape. However, the conversation that appears to have taken place is nothing more than a technical, detailed description of the legislation in question. This is a clear example of how focused and diligent Congresswoman Ellmers’s staff is in answering the questions and concerns posed by our constituents. . . . We are here to answer their questions, talk them through their concerns, and reassure them of where the Congresswoman stands on pro-life issues — this is precisely what took place during the conversation in question. While the process for the Pain-Capable bill has been frustrating, Congressman Franks is to be commended for his leadership in this longstanding effort.
Yet despite what Ellmers’s office says publicly, the audio of the constituent call provides a candid look at the argumentation used by Republican lawmakers whose complaints prevented House Republicans from fulfilling a longstanding promise to pass legislation that would ban most abortions beyond the sixth month of pregnancy. And, with the complaint about pro-life activists “playing politics,” the aide gives voice to tensions between congressional Republicans and pro-life activists that could presage further conflicts over the movement’s political strategy going forward.
At the back of the unexpected storm over the bill, for many Republicans, is the fact that some of the very lawmakers who led the floor debate in 2013 and co-sponsored the bill in 2015 eventually spoke out against their own legislation. If the reporting requirements were a problem — an argument that gained traction among some lawmakers — why weren’t they addressed earlier, as Ellmers apparently anticipated they would be? And could some of the other GOP women who shepherded the bill on the floor in 2013 really have misunderstood its contents?
The reporting requirements have their origins in the 2013 effort to pass the bill. Back then, after Franks made what the Ellmers aide called the “huge communications error” with his comments on the likelihood of pregnancy from rape, some Republicans wanted the legislation pulled. Representative Ann Wagner (R., Mo.) and Representative Jackie Walorski (R., Ind.) were especially troubled by his remarks. As successors to Akin and Joe Donnelly (the Democratic congressman who defeated Richard Mourdock), they had a vivid memory of Republican gaffes that had scuttled a GOP ticket.
But rather than kill the bill, House leadership asked Representative Marsha Blackburn (R. Tenn.) and other female lawmakers to run the floor debate over the legislation. To convince the women to do so, House leadership added a rape and incest exception, with a reporting requirement. The women agreed, with the stipulation that Franks not speak in defense of the bill. The legislation passed the House with 228 votes, including six from Democrats, but never saw a vote in the Democratic-led Senate. GOP leaders told pro-life groups that they would have another vote on the bill during the 2015 March for Life.
#page#Last summer, Franks began laying the groundwork to reintroduce the bill in this Congress. The Susan B. Anthony List, the powerful pro-life group that helped promote the bill in 2013, backed Franks despite some initial misgivings about his leading the effort again. Leadership also supported his sponsorship of the bill, but they wanted a woman prominently involved, too.
Franks worked quickly to ensure that he would be the one to reintroduce the bill, afraid that National Right to Life (NRTL), which wrote the original bill, would pressure leaders to give the bill to Blackburn. According to one pro-life activist, Franks also worried that Blackburn might introduce the bill on her own — a reasonable concern, given that Blackburn and Representative Diane Black (R., Tenn.) had filed competing versions of a bill to defund Planned Parenthood in January 2013, even though the bill’s original author had coordinated with Black.
“She’s all ready to step in front of these bills once they start going well,” one former House aide says of Blackburn.
Franks denies having any concern about NRTL or rivalry with other Republicans. He wanted only to introduce the bill quickly, he says, so that other legislators would have enough time to review and co-sponsor it. Blackburn concurs, saying they are friends who cooperated on the bill this time around just as they did in 2013.
And yet, one lawmaker troubled by the reporting requirements says that it would have been easier to persuade fretful lawmakers that the bill was politically viable if Franks had deferred to a Republican woman. “That absolutely could have made a difference,” the representative says, recalling Franks’s gaffe in the 2013 committee.
Complaints about the reporting requirements first surfaced three weeks ago, just before the GOP retreat in Hershey, Pa. At the retreat, some Senate Republicans also suggested that the requirements needed rewriting. “You can talk to some [senators] who have been in law enforcement, and they had troubles, as did Senator [Lindsey] Graham, with the reporting language because most women don’t report rape, and they felt like requiring that to go to law enforcement was going to end up being a problem,” says one House lawmaker. (Graham introduced the Pain Capable bill in the Senate this time around.)
When Ellmers urged colleagues at the GOP retreat to hold off on voting for the bill, out of concern that it might alienate young voters, several Republicans jumped up to remind her of polling data that show young voters support pro-life legislation, and their arguments seemed to carry the day.
When the Republicans returned from their retreat, Walorski and Ellmers withdrew their co-sponsorship of the bill but pledged to vote for it nonetheless. The mixed message offered an opening for Democrats’ “war on women” storyline and fed into a perception that Republican men were ignoring the concerns of the women in their own party at a moment when pro-life activists had hoped to advance legislation that has broad bipartisan support, according to public opinion polls.
“This bill is an effort to protect both pain-capable babies and their mothers from the atrocity of late-term abortion on demand in America,” Franks tells NRO, saying that the risks of an abortion increase throughout a pregnancy. “It has the ability to help us discover the humanity of the pain-capable baby and the inhumanity of what is being done to them.”
Republican lawmakers and staff identify Blackburn and Wagner as the most consequential opponents of the reporting requirements. They made the case for changing the legislation to the whole Republican conference during a meeting on the morning of January 21, the day before the March for Life, and in smaller sessions with leadership later that same day. There was some talk during this meeting of dropping the reporting requirements in favor of the broader rape-and-incest exception language that has previously been used in the Hyde Amendment. Pro-life groups opposed those changes, though. The majority of the conference, including some members of the pro-life women’s caucus, preferred to vote for the same bill they passed last Congress.
During the conference meeting, Blackburn asked staff to leave so that lawmakers could speak in private. She got choked up while making an impassioned case against the inclusion of the reporting requirements, putting leadership on notice that they had more work to do if the bill was going to pass the next day.
When asked about her role in the pain-capable debate last week, Blackburn says that she has a responsibility as a lead sponsor of the bill to facilitate a conversation between leadership and uneasy rank-and-file lawmakers.
“My goal is to pass this bill in the House, to get it passed in the Senate, to get it signed into law, and have it stand the test of time,” she tells NRO. “And if the leadership decided that the bill was going to go forward — or the conference decided or the sponsor of the bill decided that the language was going to go forward — that’s a decision that they would make. But there was concern expressed, and as the lead co-sponsor on the bill, I feel a responsibility to bring those concerns forward and to have a full discussion as to how the bill would move forward, and then how the bill would be protected as it moved forward, and then what the expected outcome was going to be.”
Some quarters of the pro-life community perceived her actions as destructive to the bill. “It’s very clear that once things started to get heated, Blackburn wasn’t defending the current bill and she wasn’t leading on the bill; she was part of the problem,” says one pro-life activist.
#page#Blackburn’s explanations during the conference left some lawmakers confused about how the GOP women could have run the floor debate in 2013 only to scuttle the reintroduced bill on the eve of the 2015 March for Life, with hundreds of thousands of pro-life activists arriving in town. Most lawmakers find the idea that some of the GOP women didn’t understand the reporting requirements last time around baffling. But at least one Republican says the requirements were just hard to find, with some of them hyperlinked in the amendment text rather than written out explicitly.
While that dovetails with the assertion of Ellmer’s aide that the reporting requirements hadn’t been vetted, the same aide also said that Ellmers knew about the language and opposed it at the time. And the requirement language was obvious enough to tip off Democrats, who criticized it in floor speeches. That fact alone makes it difficult for some Republicans and pro-life activists to believe that the GOP women were blindsided by Republican leaders.
Steve Scalise (R., La.), the House majority whip, convened a meeting in his office in an attempt to resolve the concerns. House Judiciary Committee chairman Bob Goodlatte (R., Va.) as well as Blackburn, Wagner, Ellmers, Walorski, Hartzler, Love, and other women attended.
Wagner argued against including the rape and incest exceptions at all, a position similar to the one Franks defended when he made the damaging gaffe. She also said that if leadership insisted on retaining the exceptions, they should dispense with the reporting requirements because of the risk that they would be politically damaging. Goodlatte and Scalise didn’t know how to address both concerns simultaneously, given that pro-life groups want reporting requirements in order to limit the number of late-term abortions that would take place under the rape and incest exceptions. Goodlatte brought reams of polling data showing broad bipartisan support for the legislation as written, but that didn’t resolve the conflict.
As the conversation continued, tensions rose. At one point, Wagner suggested to Goodlatte that if he didn’t listen to their concerns, he was “going to catch it.”
“I’m catching it right now,” he replied. The group laughed and the mood lightened, but the disagreement persisted. Blackburn argued that Republicans didn’t have the votes to pass the bill without changes, but not all Republicans agreed. Pro-life groups were still insisting that Republicans should keep the reporting requirements, angering some of the provisions’ opponents. “Right to Life was getting pulverized in that meeting,” says a source in the room.
Blackburn argued that Republicans didn’t have the votes to pass the bill with the reporting requirements, but Goodlatte and Scalise didn’t see a legislative alternative.
The top four members of House leadership — Speaker Boehner, Majority Leader Kevin McCarthy, Scalise, and Cathy McMorris Rogers — met after that meeting and planned to make a final push by hosting another meeting in McCarthy’s office. Franks and Ellmers were not invited.
But the meeting didn’t produce a legislative solution — it turned into a Plan B planning session. To mollify pro-life groups, the assembled party leaders decided to pass a ban on taxpayer funding of abortion, written by Representative Chris Smith (R., N.J.) in response to some provisions of Obamacare.
House leadership has promised to revive the 20-week ban, but the problems now seem nearly intractable. Either the Republicans who oppose the reporting requirements must mute their objections, or Republicans and pro-life groups who regard the reporting requirements as essential will have to yield.
It’s a dicey moment for congressional Republicans’ relationship with the activists who represent their most reliable source of grassroots support. Pro-lifers, more than any other wing of the conservative base, have historically been willing to compromise in order to achieve incremental gains. There is no government shutdown in the pro-life playbook. Life activists have, instead, accepted rape and incest exceptions that violate their principles as the price of passing the pro-life measures that protect at least some in-utero babies. If Senate Republicans have to make further changes to the bill in order to overcome a Democratic filibuster, pro-lifers might feel twice burned by the GOP.
One worry: If pro-life activists conclude that their incremental approach encourages Republicans to shift the goal posts to the left, they might adopt more absolutist tactics in response.
“Over the years, traditional exceptions [for rape and incest] have helped shepherd pro-life legislation into law,” says one GOP aide. “It would be a strategic mistake to turn these successful tactics into liabilities.”
— Joel Gehrke is a political reporter for National Review Online.