House Democrats re-introduced the Women’s Health Protection Act last week, framing the measure as restoring the “right” to abortion previously guaranteed by Roe v. Wade. However, the bill goes far beyond Roe, widely permitting abortions up to and, in some cases, after viability while barring nearly all state pro-life protections.

Vice President Kamala Harris tweeted her support the day the measure was re-introduced saying, “Protecting reproductive rights is about freedom. It’s time for Congress to codify the protections of Roe into federal law.” President Joe Biden also called for codifying Roe in his State of the Union address this year and backed the Women’s Health Protection Act last May, calling the bill’s passage “essential to the health, safety, and progress of our nation.”

Despite the Biden administration’s language of merely codifying Roe, the measure goes beyond that 1973 U.S. Supreme Court decision in several ways. Under Roe, states were permitted to regulate abortion after viability, but this measure would limit the states’ ability to do so with a broad “health of the patient” exception. 

The bill states that “a health care provider has a right under this Act to provide abortion services and a patient has a corresponding right under this Act to terminate a pregnancy after viability when, in the good-faith medical judgement of the treating health care provider, it is necessary to protect the life or health of the patient.” 

While the abortion group NARAL claimed in its advocacy for the bill that Democrats were “reflecting the will of the majority” in re-introducing it, recent Marist polling found that 69% of Americans support limiting abortion to, at most, the first trimester. According to decades of Gallup polling, only about 18% of Americans support abortion in the third trimester and only 28% in the second trimester, compared with about 60% supporting abortion in the first trimester.

The Women’s Health Protection Act also does not allow states to prohibit “a particular abortion procedure or method” or limit “a health care provider’s ability to prescribe or dispense drugs that could be used for reproductive health purposes based on current evidence-based regimens or the provider’s good-faith medical judgment.” It also bars limitations on telemedicine abortion unless such limitations are also applied to “medically comparable” services.

It would not allow any limitation on “a health care provider’s ability to provide immediate abortion services when that health care provider believes, based on the good-faith medical judgment of the provider, that delay would pose a risk to the patient’s life or health.” It does not permit states to have "a requirement that a patient seeking abortion services at any point or points in time prior to fetal viability disclose the patient’s reason or reasons for seeking abortion services."

The legislation also bars limits on abortion that would “impede access.” It lists factors for courts to consider in evaluating whether state laws impede access, including whether a limitation on abortion is “likely to delay or deter a patient in accessing abortion services,” whether it might increase the cost of obtaining or providing abortions, and whether it is likely “to result in a decrease in the availability of abortion services in a given State or geographic region.”

The measure calls “abortion care” a “human right that should not depend on one’s ZIP Code or region, age, actual or perceived race, national origin, immigration status, sex, or disability” and lists “parental involvement laws” as an obstruction to abortion access.

When the measure failed in the Senate last year despite the White House’s advocacy for it, pro-abortion Sen. Susan Collins, R-Maine, was among the lawmakers opposing it. Her office noted at the time that the bill’s “overly broad language far exceeds Roe by striking down state laws such as those that require certain materials to be given to the patient, prohibit sex-based abortions, or require parental or guardian notification for minors seeking an abortion.” 

She also noted the measure’s overriding of the Religious Freedom Restoration Act, and wrote that “Congress has never before adopted legislation that contains an exemption to this religious liberty law, which was authored by Majority Leader Schumer when he served in the House and passed by overwhelming, bipartisan margins in 1993.”  

Despite an October pledge from President Biden to make codifying Roe his first priority if Democrats took sufficient control of Congress in the midterm elections, Republicans took control of the House and the current makeup of Congress ensures that the measure is unlikely to pass.

Despite this political reality, Democrats continue to tout it as a response to the Dobbs decision which overturned Roe.

"House Democrats believe in a woman's freedom to make her own reproductive health care decisions," House Minority Leader Hakeem Jeffries, D-NY, said at a press conference Thursday introducing the bill, “and we will not rest until the Women's Health Protection Act is the law of the land.”