Since Trump was elected, it seems like the GOP has tried to slash women's reproductive rights every chance it gets. And the Republican House tax reform bill, oddly enough, was no exception. Abortion rights advocates were horrified to learn that it would legalize the ability to save up for a fetus' or "unborn child's" college funds. In the Senate's version of the GOP tax bill, however, the anti-abortion language was missing. But that doesn't mean it won't come back.
Originally, the GOP House text called for 529 college saving plans for the purpose of funding an unborn child's college education. At first glance, you might not think anything of it. The problem, though, is that the bill's House text defines "unborn child" as a "member of the species homo sapiens, at any stage of development, who is carried in the womb." The key words here, you might argue, are "at any stage of development," because they imply a fetus is a person who should presumably be protected against abortion. The House bill goes on to say that "nothing shall prevent an unborn child from being treated as a designated beneficiary or an individual under this section."
Democratic Sen. Ron Wyden was among those to criticize this language as incredibly problematic. Wyden told Rewire,
Burying personhood language in this tax bill that is primarily a handout for the wealthy is another attempt to carry out the Republicans’ perennial, extremist agenda to limit women’s reproductive autonomy.
Personhood language refers to rhetoric that tries to give constitutional and legal individual status to a fetus. Although the Supreme Court's decision in Roe v. Wade stated that the fetus is not a person, personhood language is frequently used to dangerously hurt the rights of women seeking safe reproductive health care, including abortion services.
But the Senate GOP omitted this section of the bill entirely. This is largely thanks to a relatively unheard-of rule known as the Byrd bath. The Byrd rule, named after the late West Virginia Democratic Sen. Robert Byrd, is a nifty little Senate litmus test. It analyzes the different points in a bill with the help of a Senate parliamentarian who digs into the legal text, checks whether the stated point — in this case, the demand to codify savings for unborn children's college plans — brings any domestic revenue or cuts any expenditures, and vets out whether the point has any budgetary relevance at all. In other words, the Byrd rule checks whether any given point made in a bill should be there in the first place. In the GOP's tax reform bill, the stipulation for unborn children's savings seemed to have no relevance for the parliamentarian and was presumably taken out for that reason.
For pro-choice advocates, the Byrd ruling against the Republican provision seems to be a source of relief but the fight for safe and accessible reproductive rights is far from over. Since the Senate and House approved different versions of the tax reform bill, the next step is combining the two and reaching a compromise. As of right now, no one knows what that compromise will look like.
And if you look at American history, you'll see that personhood laws and language have been consistently used to attack women's reproductive rights. From the 2013 Sanctity of Human Life Act, the 2013 Life at Conception Act, personhood petitions in Oklahoma, a personhood amendment in Colorado known as the Brady Amendment, and an Alabama House "right to life" bill, America is stunningly replete with consistent anti-abortion attempts.
According to research carried out by Rewire, personhood rhetoric has appeared in Alaska, Alabama, Montana, North Carolina, Kansas, Iowa, Washington, Virginia, West Virginia, Texas, and more. The previously mentioned instances show that the GOP could very well try to introduce similar rhetoric once again. Although its provision was taken out thanks to the Byrd bath, the very presence of the text on Capitol Hill means that anti-choice advocates can cite the GOP's House bill as inspiration for fighting against women's access to safe and accessible abortion services.
Pro-choice advocates are ready to fight, too. NARAL Pro-Choice America's head, Ilyse Hogue, issued a strong statement on the removal of the GOP provision, saying,
Using the tax bill to assert an ideological definition of when life begins is so out of bounds that we’re pleased that the Parliamentarian ruled it out of order. That said, they know they cannot achieve this goal of the anti-choice movement in the light of day, since it has failed every time it has been in front of the voters.
"So, we have every reason to expect they’ll try to do it again," Hogue said, "and when they do NARAL members will be ready to fight this again." Surely NARAL won't be alone.
