How A Little-Known Rule Got An Anti-Abortion Provision Axed From The Tax Bill

When Congressional Republicans unveiled their massive tax overhaul proposal, the chorus of critics included a corner of the political world you might not expect to be on the front lines of the fight over changes to the tax code: abortion rights advocates.

The outrage was sparked by — and directed at — a provision first tucked into the House version of the lengthy legislation that would codify Americans' ability to open 529 educational savings accounts to benefit an "unborn child." While that change might seem innocuous — getting ahead on savings given the rising cost of education should be a no-brainer — reproductive health advocates and experts warned that tweak could in reality have grave consequences for abortion rights moving forward "It is part of the anti-abortion strategy to work on all fronts to establish fetal personhood/citizenship claims," Yale Law School professor Mindy Roseman told the fact-checking site Politfact.

The language passed in the House in November and was included at one point in the Senate's tax plan as well. But the final text of the Senate version — adopted in the wee hours of Saturday morning — didn't include the so-called "personhood" text. And this time, abortion rights advocates don't have a deluge of calls clogging the Capitol phone lines or a rare instance of a Republican standing up for reproductive choice to thank.

The personhood language was a victim of what's known in the Senate as a "Byrd bath" — the enforcement of an arcane rule that has long been part of the budget process — after the Senate Parliamentarian (consider her a nonpartisan referee of sorts for chamber's rules) decided the provision wasn't eligible for inclusion in the 51-vote tax bill.

The "Byrd Rule," named for a late senator, lays out several criteria that provisions must meet in order to pass with 51 votes (versus the more typical 60-vote requirement need to overcome a potential filibuster). The process for debating potential Byrd violations ahead of a floor vote happens behind closed doors (staff from both sides of the aisle make their cases to the Senate Parliamentarian, who then issues her decisions). But Democratic Sen. Ron Wyden, the ranking member of the Senate Finance Committee, said in a statement to Rewire that he and his staff "successfully struck several provisions that should never have been wedged into a tax bill, including the misguided Republican attempt to radically change the definition of personhood under the guise of helping parents save for their kids’ college education.”

While the nature of the process makes it difficult to know for sure why the Parliamentarian ruled the way she did, one reproductive rights policy expert told Refinery29 that the death knell for the language was probably its lack of "budgetary impact." "The provision has to have an impact on the budget (to be included). The personhood language did not. This idea of saving for college for future children, it's already allowed in the law. So whether or not that provision is included wouldn’t have an impact," she told Refinery29.

While abortion rights groups slammed the provision (NARAL Pro-Choice America called it an "ideological attack on women and families" and The Center for Reproductive Rights condemned the bill's "outrageous anti-abortion rhetoric") the inclusion of the "unborn child" language had broad support from anti-abortion groups. Susan B. Anthony's List heralded it as "a small increment in the momentum that we're building to ensure that one day every child is welcomed and protected under the law" while March for Life had called it "a huge leap forward for an antiquated tax code" and potentially "the first step in expanding the child tax credit to include unborn children." Refinery29 has asked both groups for comment on the outcome of the provision.

The bills passed by the House and the U.S. Senate have some key differences, so representatives from both chambers will now meet to iron out the dueling versions of the tax overhaul. But sources from both sides of the personhood debate told Refinery29 the Parliamentarian's ruling means any such language will most certainly be left out of the final text since it runs afoul of Senate rules. That's given reproductive rights advocates reason to celebrate — with the cautionary caveat that the battle is far from over.

“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," NARAL President Ilyse Hogue said in a statement. "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, and when they do NARAL members will be ready to fight this again.”