Four reasons why the congressional Democrats’ abortion bill is extreme.
Four reasons why the congressional Democrats’ abortion bill is extreme
I n response to the leak of a draft Supreme Court opinion that would overturn Roe v. Wade and restore the right of states to regulate abortion, Senate majority leader Chuck Schumer is vowing to hold another vote on a bill that would establish a right to abortion through all nine months of pregnancy in all 50 states.
“We are focused like a laser on getting this vote shortly and on the 2022 elections,” Schumer said while speaking to the press on the Capitol steps on Tuesday.
Connecticut Democratic senator Richard Blumenthal, chief sponsor of the Women’s Health Protection Act (WHPA), told Politico on Wednesday that the bill Schumer will bring to the floor is the same as the WHPA except without some nonbinding findings. In other words, if Blumenthal’s statement to Politico is accurate, then the Democrats’ new abortion bill will include some cosmetic changes — woke language about how “transgender men” need access to abortion, for example, will be dropped — but the substance will be just as radical as the bill that Senate Republicans and West Virginia Democrat Joe Manchin filibustered on February 28 of this year.
Just how radical is the WHPA? Let us count the ways.
- The WHPA creates a right to abortion through all nine months of pregnancy:
It would create an absolute right to abort a child before “fetal viability” — that is, according to the Act, when a baby born would likely survive outside the womb — and it would prohibit states from protecting life after viability until birth if a lone “health care provider” determines the “continuation of the pregnancy would pose a risk” to the mother’s life or “health.” The bill’s chief sponsor in the Senate has acknowledged the legislation “doesn’t distinguish” between physical and mental health, and the text of the bill explicitly instructs the courts to “liberally” interpret the legislation. There can be no doubt that courts would broadly interpret “health” as Doe v. Bolton, the companion case to Roe, defined health: “physical, emotional, psychological, familial, and the woman’s age. . . . All these factors may relate to health.”
- The WHPA would strike down almost all state laws on abortion, including parental-consent and parental-notification laws:
“The basic principle is that there can be no restriction that is not also imposed on a medically comparable procedure. If they single out abortion or reproductive rights, it’s going to fall foul,” said Senator Richard Blumenthal of Connecticut, a chief sponsor of the WHPA, when he first proposed it in 2013.
The original 2013 version of the WHPA explicitly exempted some popular abortion laws from this general rule — including laws banning partial-birth abortion and “requirements for parental consent or notification before a minor may obtain an abortion.” When the WHPA was reintroduced in 2015 and again in 2017, the bill still included those carveouts for parental-consent and parental-notification laws. But after the 2018 “blue wave” that swept Democrats back into power in the House and cost a handful of moderate Democratic incumbents Senate seats, the exemptions for parental-involvement laws were quietly dropped from the WHPA. . . .
“As a parent myself, somebody who has raised two daughters who are now in their mid 20s, I take this very seriously. But ultimately I feel that young women at a certain age should have the rights to make these kind of decisions with their doctor,” [Arizona Democratic senator Mark] Kelly told National Review in the Capitol. But at what age should a minor be able to make that decision without parental consent? “I’m not going to be the arbiter of an age and a timeline and red line,” Kelly said. “You know, people ask, ‘Is there a red line here?’ No. But, I think it’s important for women to be able to make these decisions on their own, and not a bunch of folks in Washington making them for them.”
- The WHPA would gut conscience protections:
As Senator [Susan] Collins told the Los Angeles Times while announcing her opposition in September, the WHPA would “severely weaken the [conscience] exceptions that are in the current law,” eliminating protections and defenses afforded to health-care providers and by the Religious Freedom Restoration Act as no federal law has ever done before.
- The WHPA creates a right for non-doctors to perform abortions, even after viability:
The determination of whether a post-viability pregnancy poses a risk to a “pregnant patient’s life or health” may be made by a lone “health care provider” — a term that includes but is not limited to a “certified nurse-midwife, nurse practitioner, and physician assistant.”
The WHPA passed the House in September 2021, but it is doomed in the Democratic Senate. It has the support of only 48 or 49 senators: Manchin opposes it, and Pennsylvania Democratic senator Bob Casey Jr. won’t say if he supports it (but he did vote to proceed to debate on it in February). Lisa Murkowski and Susan Collins, the two Senate Republicans who support a right to abortion, say that the WHPA is too extreme for them. In a joint press release, they noted it would also prevent states from prohibiting sex-selective abortions (that is, killing baby girls in the womb because they are girls).
A stripped-down version of the WHPA that Collins and Murkowski could support is also doomed for now because Manchin and Democratic senator Kyrsten Sinema of Arizona oppose nuking the Senate’s 60-vote rule for legislation.
So what’s the point of holding another vote on a bill that was filibustered on February 28? Democrats say they want to draw attention to the issue, with the hope of campaigning on it and gaining the two Senate seats they need to end the filibuster and enact the WHPA in 2023. Few people were paying attention when the Senate voted on the bill on February 28, in the opening days of Russia’s full-scale war against Ukraine. With the leak of the Supreme Court opinion, the next vote will get a lot more attention from the media. The problem for Schumer and congressional Democrats is that if the WHPA is accurately described, it is legislation that most Americans will oppose.