WASHINGTON — As the Supreme Court prepares to hear the question of whether all pre-viability restrictions on abortion are unconstitutional in Dobbs v. Jackson, abortion advocates have aggressively mobilized to combat the possibility of the 1973 Roe v. Wade decision legalizing abortion being overturned. 

They have focused their aim on state abortion restrictions, particularly after the Supreme Court left in place a Texas law that bars abortion after the detection of a fetal heartbeat at about six weeks. Meanwhile, the pro-life movement has been hopeful that an end to Roe is in sight and attentive to how the landscape might shift if Roe is overturned. 

The Supreme Court left the Texas law in place last month because it is enforced through lawsuits from private citizens, protecting it from lawsuits against the state government that typically block such laws. House Speaker Nancy Pelosi, D-Calif., called the measure “a vigilante bounty system that will have a chilling effect on the provisions of any health-care services”; and, in response to it, Democrats in Congress rallied behind the Women’s Health Protection Act. In a 218-211 vote last week largely along party lines, the House passed the legislation, which would bar virtually any state restriction on abortion and could require health-care workers to assist with abortions despite conscience-based objections. 

Pelosi commented just before the vote that “this is the first time that we have a pro-choice Democratic [majority] with a Democratic president. And the timing could not be better, because of the assault that has been made on the constitutional rights of women in our country.” 

While the Democratic majority in the House ensured the passage of the bill, the legislation is not likely to pass the Senate, where it would need a 60-vote filibuster-proof majority. It also does not appear to have the support of all 50 Senate Democrats, as Sens. Joe Manchin, D-W.Va, and Bob Casey, D-Pa., Catholic politicians who have occasionally backed pro-life legislation, are not listed as sponsors of the bill. Additionally, Sen. Susan Collins, R-Maine, who often votes with Senate Democrats on abortion issues, voiced concerns over the bill’s lack of religious-freedom exceptions. 

“I support codifying Roe. Unfortunately, the bill … goes way beyond that. It would severely weaken the conscience exceptions that are in the current law,” Collins told the Los Angeles Times.

Despite the uphill battle the bill faces in the Senate, Senate Majority Leader Chuck Schumer, D-N.Y., said that he would schedule a vote on the measure. 

“We are currently seeing unprecedented and unconscionable Republican attacks on reproductive rights across the country laced with vicious vigilantism,” Schumer said in a joint statement with Sens. Richard Durbin, D-Ill., Patty Murray, D-Wash., and Richard Blumenthal, D-Conn. “Congress must assert its role to protect the constitutional right to abortion.”

The White House has fully backed the Women’s Health Protection Act as part of its “whole-of-government” response to the Texas law, promised by President Joe Biden, who dubbed the Texas Heartbeat Act an “unprecedented assault on a woman’s constitutional rights under Roe v. Wade, which has been the law of the land for almost 50 years.” Another part of the administration’s response included the Department of Justice’s lawsuit against the state of Texas over the law. The administration also filed an amicus brief in the Mississippi case urging the Supreme Court to uphold Roe.

 

Criticism of the Supreme Court 

Senate Democrats recently held a hearing taking aim at the Supreme Court over its decision to let the Texas law remain in place, questioning the emergency docket the court used in the case, which the court typically uses to weigh in on emergency disputes quickly through an unsigned order from the majority of justices. 

“The Supreme Court has now shown that it’s willing to allow even facially unconstitutional laws to take effect when the law is aligned with certain ideological preferences,” Durbin, who is the chairman of the Senate Judiciary Committee, commented. “Constitutional rights for millions of Americans should not be stripped away in the dark of night.”

Sen. Chuck Grassley, R-Iowa, ranking member of the Judiciary Committee, said that the court “did not do something extraordinary” in the Texas case and “didn’t pre-judge the issue, but they acknowledged that the plaintiffs had a serious case. But the court also said that the case raised novel procedural issues. It noted that under current precedent, it was not clear that the plaintiffs could sue the defendants.” 

Grassley said “liberal dark money groups” who are worried about the result in the Dobbs case believe “that a public campaign can influence the Supreme Court’s decision. These groups have been publicly celebrating polls that show that the public’s trust in the Supreme Court has dropped.” 

He also noted that Senate Democrats in the past have made threatening comments about how the Supreme Court should rule in abortion disputes, quoting Schumer’s comment in March 2020 that Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh “won’t know what hit them” if they ruled against abortion providers. 

“This campaign against the [Supreme] Court — and against individual justices — has hurt the public,” Grassley said. “The dishonest rhetoric doesn’t help the American people understand the issues.”

 

‘Greater Intensity’ 

After the Texas law went into effect, Planned Parenthood Action Fund’s president, Alexis McGill Johnson, commented that “with the right to safe, legal abortion in grave danger across the country, there is no doubt that reproductive rights will be on the ballot in 2022. If one thing is clear — there is no state where banning abortion is popular. With our rights on the line and public opinion on our side, Planned Parenthood Action Fund will keep fighting in Texas and across the country.”

“I predict there will be a greater intensity on this issue,” Marjorie Dannenfelser, president of the Susan B. Anthony List, recently told The Washington Post of the abortion issue in the 2022 midterm elections. “In the past, it’s all been planning for the distant future, for a day when it might happen. And in this election, we can say that moment is much closer.”

Prudence Robertson, spokeswoman for the SBA List, told the Register that “the pro-abortion movement is running scared and doing everything they can to paint this as extreme because this is the most significant moment that our movement has seen in nearly 50 years. This is the first time in nearly 50 years that the court has agreed to take up this very specific question of ‘Are pre-viability limits on abortion unconstitutional?’” 

Part of the extreme response from the abortion movement, she said, is House Democrats’ passing the Women’s Health Protection Act, which “would make all pro-life laws that are already in effect, null and void, and it would stop future pro-life leaders from passing pro-life laws down the road.” 

 

Tension Between State Laws and Biden Agenda 

Sarah Parshall Perry, a legal fellow at the Heritage Foundation’s Meese Center, told the Register that while the Supreme Court’s decision in the Texas case was “appropriately made,” it resulted in “a little bit of earth shaking, as far as the Democrats are concerned.” 

She highlighted the fact that Democrats in the House Oversight Committee recently held a hearing intended to “examine the threat to abortion rights and access posed by extreme anti-choice state governments and a Supreme Court that is hostile to reproductive rights” and “evaluate actions the federal government can take to protect the right to abortion and expand access in light of these existential threats — including passing the Women’s Health Protection Act and putting an end to the Hyde Amendment.”

At the hearing, U.S. Rep. Carolyn Maloney, D-N.Y., chairwoman of the Committee on Oversight and Reform, declared, “We must pass the Women’s Health Protection Act to firmly establish a statutory right to abortion care in every community across our country. Our rights are no longer being chipped away, they are being bulldozed into the ground.”

“We’re seeing the states and the federal government in this very tense dance about what might happen at the Supreme Court in the Dobbs v. Jackson Women’s Health case,” Perry said. “In fact, nationally, in the past decade, we’ve seen more than 500 pro-life bills passed at the state level.” 

She quoted the late Justice Antonin Scalia’s dissent in Planned Parenthood v. Casey, which stated that on the abortion issue, “by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

She said that what overturning Roe v. Wade would ultimately do is “send the issue back to the states,” so it “would be harder to get an abortion in Texas and Florida, Tennessee and Mississippi” and “would be much easier to get one in California, Washington, Oregon, New York. That’s the way representative government and a system that is designed as a federal representative system ought to operate and was designed to operate by the Founders.”

Perry added that it is more apparent than ever that abortion “was never, as the Democrats once represented through President Bill Clinton, a situation that they wanted to make ‘safe, legal and rare.’ In fact, now it is expanded, accessible and free as much as possible, and that’s the legacy of this current representative Democratic House.”

Helen Alvaré, a legal scholar at George Mason University’s Scalia Law School, told the Register that the Women’s Health Protection Act is a “huge power grab of every aspect of abortion law” that “would also overturn a bunch of the laws the Supreme Court has permitted: informed consent, parental consent, safety guidelines, etc.” 

She believed the administration’s push for the measure comes partly from added pressure due to the Texas and Mississippi abortion cases, but also from the Biden administration’s low polling and the need for the president to point to actions on issues that are important to the Democratic Party’s base. 

“It’s a tactic,” she said. “Their virulence is in part because, right now, the more extreme voices in the Democratic Party are very powerful.”

 

The Pro-Life Movement After Roe

In the event that Roe is overruled, Alvaré said that the pro-life movement “is very active” and “has lots of good state organizations. We know that the pro-life movement is singlehandedly offering assistance to women in crisis pregnancies, struggling single moms.” However, she added that “the obsessive valorization and attention to abortion as the thing for women by advocates of legal abortion is so intense, so angry, so unreasonable, and so well-funded that, who knows? Should Dobbs do something big like overturn Roe and Casey, or effectively do so, or come close to doing so, or permit lots more restrictions on abortion, there will be a frenzy.” 

She said it was key for the pro-life movement to “maintain its composure to meet this sort of insane level of panic and histrionics with reason, with a reminder that we handled this stuff at the state level before” and that the movement should “continue and probably expand our outreach on crisis pregnancies.”

Regarding the future for the pro-life movement if Roe v. Wade is overturned, Robertson said SBA List’s mission “continues to be the same,” to “end the destruction of innocent unborn life.” She said in that event, some states “will probably continue to have pretty loose restrictions when it comes to abortion, like New York and California, but there are other very pro-life states, and the situation there is that the handcuffs will be taken off, and they’ll be allowed to pass restrictions and limits on abortion that recognize the humanity of the children in their state and support the will of the people that live there.” 

She added that SBA list will be “working hard to ensure that people in those states know of the resources and opportunities there are to choose life and to be connected with people who can not only help them when their baby is first born, but also into the early years of that child’s life, making sure that they have material resources.”