House Democrats, White House Push Aggressive New Law to Cut Through Challenges to Roe
An extreme measure targeting state pro-life laws is being advanced.
House Democrats are voting this week on a bill to ensure abortion without limits nationwide and eliminate pro-life legislation in the states in response to the Supreme Court leaving in place a Texas law prohibiting abortion after detection of a fetal heartbeat at about 6 weeks.
Another point of concern for abortion advocates is the possibility that the court could overturn Roe v. Wade, the 1973 court decision that legalized abortion nationally, or do away with its viability framework, as the Supreme Court justices are poised to consider whether all pre-viability abortion bans are unconstitutional in light of Mississippi’s 15-week abortion ban.
The Women’s Health Protection Act (WHPA) would forbid almost any state limitations on abortion, including “a prohibition on abortion at any point or points in time prior to fetal viability ... a prohibition or restriction on a particular abortion procedure” and even “a prohibition on abortion after fetal viability when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”
The bill was first introduced in Congress in 2013, but the measure has not made it to a vote any previous time it was introduced. Abortion groups have backed it with a new urgency, citing the possibility of Roe being overturned in their push for the measure.
In June, at the time of the bill’s introduction, Planned Parenthood President Alexis McGill Johnson said “state politicians across the country have been doing all they can to block people from this care, and our nation’s highest court is about to hear a case that could undermine our constitutional right to abortion. ... The Women’s Health Protection Act would bring us one step closer to a world where everyone can take full control of their bodies and their futures.”
Adrienne Kimmel, acting president of the abortion advocacy group NARAL, wrote this month that “because the Supreme Court refused to block Texas’ SB 8 — the most draconian and extreme ban on abortion in the country — Roe has been effectively overturned for tens of millions of people in Texas. Congress has the power to safeguard the legal right to abortion in Texas and throughout the country and there is no time to waste.”
House Speaker Nancy Pelosi, D-Calif., said following the enactment of the Texas heartbeat law that the House will take up the measure to “enshrine into law reproductive health care for all women across America” and referred to the Texas law as “the most extreme, dangerous abortion ban in half a century.” She said the Texas law “necessitates codifying Roe v. Wade.”
The measure is likely to pass this week in the Democrat-controlled House of Representatives, but it will hit a roadblock in the Senate where it would need a 60-vote filibuster-proof majority to pass. There are 48 of 50 Senate Democrats co-sponsoring the bill with the notable exceptions of Sens. Joe Manchin, D-W.Va. and Bob Casey, D-Pa., who have backed pro-life measures in the past and stated opposition to taxpayer funding of abortion. Senate Democrats would need to seek the support of pro-abortion-rights Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, and the bill would likely still fall short of the votes needed.
Aimed at State Laws
Proponents of the measure say it would simply codify Roe v. Wade, but Melanie Israel, a policy analyst at the DeVos Center for Religion and Civil Society at the Heritage Foundation, highlighted ways in which the bill would go beyond the 1973 decision that legalized abortion.
In her recent report on the legislation she said it would “effectively repeal existing state laws, expressly prohibit future laws that regulate abortion and the abortion industry, and place at risk long-standing federal policies that reflect more than 40 years of bipartisan consensus. Since 1973, states have enacted more than 1,300 life-affirming policies — more than 500 in the past decade alone. These laws have been enacted by policymakers duly elected by their constituents, and some have been litigated all the way to the Supreme Court and deemed constitutional. The WHPA simply ignores numerous long-standing laws protecting critical interests.”
Archbishop Joseph Naumann of Kansas City in Kansas, chairman of the U. S. Conference of Catholic Bishops’ pro-life committee, wrote last week that the bill “would impose abortion on demand nationwide at any stage of pregnancy through federal statute” and “would eliminate modest and widely supported pro-life laws at every level of government — the federal, state, and local level — including parental notification for minor girls, informed consent, and health or safety protections specific to abortion facilities. It would force all Americans to support abortions here and abroad with their tax dollars. It would also likely force health care providers and professionals to perform, assist in, and/or refer for abortion against their deeply- held beliefs, as well as force employers and insurers to cover or pay for abortion.”
White House Support
The White House backed the measure Monday with a statement that “In the wake of Texas’ unprecedented attack, it has never been more important to codify this constitutional right and to strengthen health care access for all women, regardless of where they live. The Administration looks forward to working with Congress as the Women’s Health Protection Act advances through the legislative process to ensure that this bill codifies and is consistent with the protections established by Roe and subsequent Supreme Court precedent.”
The statement followed a Thursday meeting that Vice President Kamala Harris, herself a former sponsor of the legislation, had with abortion providers. She told those gathered that “the president and I are unequivocal in our support of Roe v. Wade and the constitutionality of Roe v. Wade” and added that when it comes to abortion restrictions “it’s not only Texas where this is happening. And I know we’re going to talk about Mississippi. We’re talking about New Mexico. We’re going to talk about the United States and what we must do collectively — all of us — to protect the women of our country and protect their constitutional rights.”
Harris has a history of opposing state pro-life laws, and on the 2020 presidential campaign trail even proposed that “states that have a history of passing legislation designed to prevent or limit women’s access to reproductive health care will be required to come before my Department of Justice. Until we determine their laws are constitutional, they will not take effect.”
On the campaign trail last October, Biden responded to a question about the possibility of Roe v. Wade being overturned by saying, “The only responsible response to that would be to pass legislation making Roe the law of the land. That’s what I would do.” He also pledged that his “Justice Department will do everything in its power to stop the rash of state laws that so blatantly violate the constitutional right to an abortion, such as so-called TRAP laws, parental notification requirements, mandatory waiting periods, and ultrasound requirements.”
The Justice Department appears to be acting on this pledge and recently filed a friend of the court brief opposing Mississippi’s prohibition of abortion past 15 weeks and affirming the reasoning of Roe. The DOJ also sued the state of Texas over the heartbeat law, which has evaded traditional legal challenges due to its enforcement coming from lawsuits from private citizens rather than state government.
“The Act is clearly unconstitutional under longstanding Supreme Court precedent,” Attorney General Merrick Garland said of the measure. “The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.”