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U.S. Sen. Kay Bailey Hutchison’s record on abortion makes some Republicans uncomfortable, so it was no surprise that it came up during the Jan. 14 Republican gubernatorial debate.
Gov. Rick Perry invoked abortion to try to illustrate what he called the senator’s “issues with inconsistency.”
“You voted to continue Roe v. Wade,” Perry said to Hutchison.
Hutchison, who said during the debate that she always comes down on the “side of life,” has not always voted in ways that please two state groups, Texas Alliance for Life and Texas Right to Life's political action committee, which have endorsed Perry.
Nor have Hutchison's votes on abortion issues satisfied some abortion rights advocates. "She's voted for every unreasonable restriction in the book," Donna Crane, policy director for National Abortion Rights Action League Pro-Choice America, said through a spokeswoman.
Historically, the senator has supported abortion rights, with restrictions. Her campaign points to her record of voting for legislation limiting the procedure, including the Partial-Birth Abortion Ban Act of 2003.
To Texans watching the debate, Perry’s statement on Roe v. Wade, the 1973 Supreme Court decision that established a woman's constitutional right to terminate a pregnancy, may have seemed odd. That’s because Congress can’t vote to overturn a Supreme Court decision based on a constitutional right, University of Texas law professor Scot Powe said.
Congress could, however, act to amend the U.S. Constitution to prohibit abortions.
But for an amendment to become law, it must be passed by two-thirds of both houses of Congress and be ratified by three-fourths of the states. That hasn’t happened.
We wondered what vote the governor was referring to during the debate. His campaign pointed us to a 2003 vote that Hutchison cast for a resolution expressing support for Roe v. Wade. The resolution, an amendment to the Partial-Birth Abortion Ban Act, expressed "the sense of the Senate that (1) the decision of the Supreme Court in Roe v. Wade … was appropriate and secures an important constitutional right; and (2) such decision should not be overturned.”
In and of themselves, such "sense of the Senate" resolutions enact no laws, spend no public funds and are largely symbolic. The resolution was not included in the final version of the bill in Congress. The late-term ban was later upheld by the Supreme Court.
In 2003, Hutchison told the Dallas Morning News that she "thought it was a very clean amendment that said Roe v. Wade has evolved into allowing reasonable restrictions to be put on by states, while also allowing women in the early stages (of pregnancy) to have that capability, if that is what they and their doctors decide."
When asked this week about her vote, Hutchison's campaign said that the senator believes states should be able to keep their ability to restrict abortion and that the amendment sent that statement.
However, the only reference that the 2003 resolution made to state restrictions was the observation that Roe v. Wade actually limits "the power of States to restrict the right of a woman to choose to terminate a pregnancy." During the gubernatorial debate, Hutchison voiced a different concern: that overturning Roe v. Wade would lead to "abortion havens" because some states would pass looser laws on abortion while others would outlaw the practice altogether.
Hutchison was among 17 senators, including six Republicans, who voted both for the ban on the late-term procedure and the resolution affirming Roe.
While critics have called those dual votes an attempt by lawmakers to appeal to both sides in the abortion debate, Cal Jillson, a political science professor at Southern Methodist University, disagrees. Supporting restrictions on abortion while recognizing that access to abortion services is needed in some cases actually reflects the moderate views most Americans have on the issue, he said.
"The idea that pro-choice means unrestricted access to abortion services and that pro-life means that life begins at conception and therefore abortion is murder are the poles in this debate," Jillson said. "But there’s a vast middle ground. And for two-thirds of America, that's where they live."
Summing up: On its face, Perry's statement that Hutchison "voted to continue Roe v. Wade" is wrong because senators have no such power regarding Supreme Court decisions. If Perry had substituted "affirm" for "continue," the statement would have been accurate, though perhaps less politically potent.
But the brunt of Perry's charge is correct: Sen. Hutchison voted for a resolution that said Roe v. Wade should not be overturned. We rate his statement as Mostly True.
U.S. Sen. Tom Harkin's office, resolution on Roe v. Wade
U.S. Senate, roll call vote on amendment to Partial-Birth Abortion Ban Act of 2003
Dallas Morning News, "Hutchison raises eyebrows with vote on abortion," March 16, 2003
Interview with Professor Scot Powe, University of Texas School of Law, Jan. 22, 2010
E-mail interview with Molly Jackson, spokeswoman, NARAL Pro-Choice America, Jan. 25, 2010
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