"I Hope This is Settled Now: Rape is Rape."

| Tue May. 3, 2011 3:00 AM PDT

In February, House Republicans drew widespread condemnation for pushing a bill, the "No Taxpayer Funding for Abortion Act," or H.R. 3, that would have changed the definition of rape for the purposes of abortion law. They eventually removed the offending language from the bill itself, but they're still after the same goal. I have a piece today about how they're trying to do it again:

Republicans haven't stopped trying to narrow the already small exception under which federal funding for abortions is permissible. They've used a sly legislative maneuver to make sure that even though the language of the bill is different, the effect remains the same.

The backdoor reintroduction of the statutory rape change relies on the use of a committee report, a document that congressional committees produce outlining what they intend a piece of legislation to do. If there's ever a court fight about the interpretation of a law—and when it comes to a subject as contentious as abortion rights, there almost always is—judges will look to the committee report as evidence of congressional intent, and use it to decide what the law actually means.

In this case, the committee report for H.R. 3 says that the bill will "not allow the Federal Government to subsidize abortions in cases of statutory rape." The bill itself doesn't say anything like that, but if a court decides that legislators intended to exclude statutory rape-related abortions from eligibility for Medicaid funding, then that will be the effect.

As I explain in the story, Republicans say they aren't changing anything: They're just codifying existing law, which they say already forbids the use of Medicaid funds to pay for abortions in cases of statutory rape. Almost all the folks I spoke to, including the Center for Medicare and Medicaid Services (CMS), which works with state agencies to administer Medicaid, say that's not true: existing law doesn't allow states to distinguish between different types of rape when it comes to funding abortions.

But Douglas Johnson, the legislative director of the National Right to Life Committee (NRLC) and a top anti-abortion lobbyist, agrees with the Republicans that a current law, the Hyde Amendment, already makes a distinction between different types of rape. When pressed for evidence to support that assertion, Johnson noted that many federal abortion laws have been interpreted in "widely varying ways depending on who is doing the interpreting." Just because "the current gang at CMS" interprets the law a certain way, that "doesn't mean that the House Judiciary Committee report statement is wrong," Johnson says.

Johnson has a point, and perhaps a future Republican president could choose to interpret the Hyde Amendment in this matter. But when I followed up with a CMS spokeswoman, she was adamant that Johnson is mistaken: "As we said before, we have always considered rape to be rape and we have never made a distinction under the Hyde amendment on different types of rape under any administration that we can remember," she said. "I hope this is settled now: rape is rape."

NARAL Pro-Choice America has also issued a statement:

"The anti-choice House leadership faced fierce public backlash against the original 'redefining rape' fiasco," said Nancy Keenan, president of NARAL Pro-Choice America. "Any attempt to reintroduce this outrageous provision would be unconscionable, and will only further galvanize Americans against anti-choice politicians who are wildly out of touch with the values and priorities of our country."

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