The ‘Women’s Health Protection Act’ would supersede all federal and state laws, including longstanding conscience laws.
The ‘Women’s Health Protection Act’ would supersede all federal and state laws, including longstanding conscience laws.
R epublican senator Susan Collins of Maine and Democratic senator Richard Blumenthal of Connecticut both support federal legislation enshrining an expansive right to abortion in all 50 states. Both have introduced bills that would invalidate Mississippi’s law banning most abortions later than 15 weeks of pregnancy — a law that has strong popular support in the United States and is still more permissive than the abortion law in France.
But when Blumenthal’s bill, the Women’s Health Protection Act, is brought up for another procedural vote today, Collins will vote against it. A major reason for Collins’s opposition is that the bill overrides federal and state conscience laws regarding abortion. There are a number of conscience laws, most notably the Church Amendments and Weldon Amendment, that protect health-care workers, medical students, hospitals, and insurers from being coerced into performing, training to perform, assisting, paying, or referring for an abortion.
But the text of the WHPA states that it “supersedes and applies” to all federal and state laws and that no provision of federal or state law or regulation that conflicts with the WHPA shall be enforced. There are just a few exceptions to this rule — such as a carveout for the federal partial-birth-abortion ban (but not all state laws banning the partial-birth abortion).
Why didn’t the WHPA include a carveout for conscience laws, such as the Weldon and Church amendments? “We don’t need to,” Connecticut senator Richard Blumenthal, chief sponsor of the WHPA, told National Review in the Capitol this week. “It’s not in conflict.”
“If you read the language of the bill, and you think about it, those kinds of freedoms of religious conscience and moral conviction are not in conflict with this act,” Blumenthal said. “Those people cannot be required to do anything that is against their conscience. And we’ll put that on the record. That’s the intent and spirit of the act. If necessary, we’ll clarify the language.”
It would have been simple enough to add the Weldon and Church amendments to the list of carveouts from the WHPA, but Democrats have not amended the bill that will get a procedural vote this afternoon in the Senate.
The WHPA’s provision that it supersedes any law that “singles out” and “impedes access” to abortion clearly jeopardizes conscience laws. The WHPA explicitly lists some factors to be used by courts to determine whether a law “impedes access,” including anything that is “reasonably likely to directly or indirectly increase the cost of providing abortion services or the cost for obtaining abortion services.” If a hospital had to hire additional nurses willing to perform abortions because some nurses refuse to participate in an abortion out of religious or moral conviction, that would “directly or indirectly increase the cost of providing abortion services.”
Blumenthal said this week that there is a “carveout for the Religious [Freedom] Restoration Act” in the WHPA, but Susan Collins said that Democrats “must have misread their bill. It supersedes all federal and state laws including the Religious Freedom Restoration Act.”
The decision not to exempt the Weldon Amendment and the Church Amendments from the WHPA was no oversight. Groups such as NARAL and Planned Parenthood oppose the Weldon Amendment, and the Biden administration has dropped a case prosecuting a clear violation of the Church Amendments. The ACLU has sued Catholic hospitals to try to force them to perform abortions. In 2018, 18 Democratic senators, including Blumenthal, signed a letter stating that “religious beliefs have already been used to deny access to services most often needed by women, such as abortion.” That letter specifically named the Weldon and Church amendments as provisions that “already threaten patient health.”
The WHPA is to abortion what H.R. 1 was to voting rights: a sweeping bill that’s been sitting on the shelf for years and includes everything left-wing groups have ever wanted. It effectively creates a right to abortion through all nine months of pregnancy in all 50 states. It overrides popular laws requiring parental-consent or parental-notification for minors; popular laws requiring abortionists to provide information about alternatives to abortion; and popular laws requiring a 24-hour waiting period before an abortion. While it guts popular laws protecting the conscience rights of Americans, it creates a federal right to sex-selective abortion.
There will likely be more votes on abortion in Congress throughout the summer, and the ways in which the WHPA goes beyond Roe should not obscure the fact that Roe itself is radical. But with today’s vote, congressional Democrats are making it plain just how extreme abortion policy will be in all 50 states if they hold the House and pick up the two Senate seats they need to abolish the filibuster and enact their radical abortion bill in 2023.