House passes abortion bill despite fiery opposition

The Delaware House of Representatives narrowly gave final approval Tuesday to legislation removing restrictions on abortion after a tense debate and despite fierce opposition from pro-life advocates. 

The bill would ensure abortion remains legal in the event it is overturned by the Supreme Court. Currently, abortion is illegal in Delaware, but that law is unenforceable because of the Roe v. Wade decision. 

Democratic lawmakers said the bill would not change the existing rules established by Roe, but they said the move was necessary given the possibility that President Donald Trump will appoint conservative Supreme Court justices who could overturn the precedent. 

"Whether I agree with abortion or not, I believe In a woman's right to choose," said Rep. Andrea Bennett, D-Dover.

BACKGROUND::More on supporters' arguments for the bill

ANOTHER BIG DEBATE:Read about the fight over reinstating the death penalty in Delaware

Pro-life advocates argued the bill would open the door to late-term abortions, and said lawmakers were legalizing the killing of unborn children. They mounted an impassioned lobbying campaign and held a rally with more than a hundred participants in front of Legislative Hall before the vote.

"Save our Babies, Defeat SB5," said one sign at the rally. "Save the innocent unborn," another said.

The bill now heads to the desk of Gov. John Carney, who will sign it, according to spokesman Jonathan Starkey

"[Carney] hopes the General Assembly can now focus its attention on our nearly $400 million budget shortfall, ways to create jobs across our state, and discuss a long-term revenue plan that will help lay the foundation for a balanced budget solution," Starkey said.

Delaware law says abortion is illegal with a few exceptions: if the pregnancy puts the mother's life at risk, if it is a result of rape or incest, or if there is substantial risk of grave birth defects.

The law also says pregnancies cannot be terminated after 20 weeks of pregnancy. Those restrictions are unenforceable because of Roe and other precedents that followed, Democrats say.

Under the new law, abortions will be legal as long as they happen before the fetus is "viable." Abortions after viability could only happen if the pregnancy is endangering the life of the mother or if the fetus is unable to survive without "extraordinary medical measures."

The debate is over what constitutes "viability."  The new law removes the 20-week rule and does not set a specific time limit. 

The bill's sponsors say they did not include a hard limit for viability because every pregnancy is different, and improvements in medical science mean fetuses can be considered viable earlier and earlier. They say groups like the American College of Obstetricians and Gynecologists set clear guidelines on what constitutes a viable fetus.

Opponents believe the lack of a hard and fast definition will open the door to abortions of fetuses that could survive a birth and give unethical doctors leeway to kill.

They have invoked criminals like Kermit Gosnell, the Philadelphia doctor who was convicted of killing three infants who were born alive during abortion procedures, among a host of other crimes.

"People will say this is not about late-term abortions," Ellen Barrosse, an anti-abortion activist and National Republican Committeewoman, told supporters at the rally. "Show them the bill. Show them the line that eliminates the 20-week ban."

As the vote happened, the gallery of the House chambers was packed with pro-life supporters wearing green, pressed up against a smaller corps of pro-choice supporters wearing purple.

Republicans attempted to amend the bill to re-institute the 20-week rule. But Speaker of the House Pete Schwartzkopf ruled — at the advice of a legislative attorney — that the changes they had proposed already were ruled unconstitutional by the Supreme Court and therefore could not be added to the bill.

Those decisions visibly irked some Republican representatives and the pro-life supporters in the gallery. They were further aggravated when Schwartzkopf refused to allow a lawyer from Virginia testify because he was not licensed to practice law in Delaware.

At one point, people in the gallery began clamoring, but Schwartzkopf hammered down the gavel.

"I'll have everybody or anybody removed from this room if we don't keep quiet," he said, quieting the murmur.

Republicans also attempted to amend the bill to require a more thorough notification process for those seeking an abortion — including an explanation of the risks of and alternatives to an abortion exist. That amendment was voted down.

The Republicans' efforts came after a campaign spearheaded by the Delaware Family Policy Council to muster opposition to the bill. It got the support of Susan B. Anthony's List, a national organization that supports pro-life causes around the country. 

In a news release, Susan B. Anthony's List claimed it spent "nearly six figures" on the effort to stop the legislation.

“With a pro-life President in the White House and already one pro-life Justice nominated and confirmed, abortion advocates are running scared," the group's president said in the release, claiming abortion supporters were using Delaware as a test case to attempt similar moves in other states.

The group funded a poll of 300 Delawareans in which 82 percent of respondents said they opposed the bill —even those who identified as pro-choice opposed it.

But Sen. Bryan Townsend, D-Newark, and the prime sponsor of the bill said the poll was inaccurate because it described the bill as legalizing late-term abortions, which he insists is incorrect. He also questioned the poll's methodology. 

"It's a push poll," he said, using a term for a poll with leading questions that influence the answers.

Townsend said the U.S. has found the right balance on abortion rules thanks to Roe v. Wade and following precedents, and he said his bill was simply codifying that balance.

Contact Matthew Albright at malbright@delawareonline.com (302) 324-2428 or on Twitter @TNJ_malbright.