Congressional Democrats have reintroduced a bill that would invalidate nearly all state-level restrictions on abortion, including existing laws placing limits on late-term abortions.
The Women’s Health Protection Act, reintroduced last week in both the House and the Senate, would strike down any abortion law or regulation that isn’t applied to a “medically comparable procedure,” and the legislation leaves it up to abortion doctors to determine what counts as a medically comparable procedure.
That means the federal legislation would strike down popular state laws establishing 24-hour waiting periods before an abortion is performed, informed-consent laws, bans on sex-selective abortions, and many health and safety regulations.
The bill would also invalidate state limits on late-term abortions: If passed, the Women’s Health Protection Act will require states to permit abortion after an unborn child is viable (that is, old enough to survive outside the womb) if a single doctor asserts that an abortion is necessary to protect the mother’s “health.” The text of the bill explicitly instructs the courts to “liberally” interpret the legislation, and the bill “doesn’t distinguish” between physical and mental health, as its chief Senate sponsor Richard Blumenthal of Connecticut has said.
Pennsylvania’s longstanding Abortion Control Act, which prohibits abortion after 24 weeks of pregnancy, would therefore run afoul of the Women’s Health Protection Act because the Pennsylvania law includes an exception for later abortions only when a serious physical-health issue exists, not mental-health issues. In 2013, notorious abortionist Kermit Gosnell was convicted under Pennsylvania’s Abortion Control Act for killing 21 infants in utero later than 24 weeks into pregnancy. (Gosnell was also convicted on three counts of murder for killing infants after they had been born.)
This fall, the Supreme Court will hear a case that will decide whether U.S. Constitution prohibits the state of Mississippi from limiting legal abortion to the first 15 weeks of pregnancy, with exceptions for later abortions in the case of a threat to the mother’s physical health or when the child suffers from a condition that is “incompatible with life outside the womb.”
Although congressional Democrats and other advocates of an unfettered right to abortion have portrayed Mississippi’s law as extreme, polling consistently finds that laws generally prohibiting late-term abortions are broadly popular. Gallup polling from 2018 found that only 13 percent of Americans said that abortion should be generally legal in the third trimester of pregnancy, and only 28 percent of Americans think abortion should be generally legal in the second trimester, which begins 13 weeks into pregnancy.
The Women’s Health Protection Act is backed by 48 of the 50 Senate Democrats. All of the incumbent Senate Democrats running for reelection in battleground states next year — Raphael Warnock of Georgia, Mark Kelly of Arizona, Maggie Hassan of New Hampshire, and Catherine Cortez-Masto of Nevada — are co-sponsoring the bill. Senators Joe Manchin of West Virginia and Bob Casey Jr. of Pennsylvania are the only Senate Democrats who aren’t co-sponsoring it.
The bill, which was first introduced in 2013, has never received a vote in either the House or the Senate, but Democrats would likely enact the Women’s Health Protection Act (or some version of it) if they pick up a couple of seats in the Senate and hold the House of Representatives in 2022 and then abolish the Senate filibuster in 2023.