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Here's How Democrats Can Turn Roe v. Wade into Law. (It Won’t Happen Anytime Soon.)

Several Democratic members of Congress introduced The Women’s Health Protection Act Thursday.

by Carter Sherman
May 24 2019, 6:42pm

Several 2020 presidential candidates are insisting that they want to pass federal laws to protect women’s access to abortion in the wake of an Alabama law that would ban almost all abortions, including in cases of rape and incest.

It’s the best way, they say, to ensure that women across the country will still be able to undergo the procedure even if the Supreme Court overturns Roe v. Wade, the 1973 decision that legalized abortion nationwide.

So on Thursday, several Democratic members of Congress introduced a plan to do just that.

The Women’s Health Protection Act would block states from banning abortion or holding its providers to medical standards that activists say are onerous and unecessary, like requiring abortion providers to be able to admit patients at nearby hospitals. Those restrictions may not trigger the same outrage as a so-called “heartbeat” bill, which can ban abortion before many women know they’re pregnant. But they’re often far more likely to lead clinics to close.

So far this year, state legislators have introduced more than 350 abortion restrictions, according to a tally by the the Guttmacher Institute, which tracks abortion access. Aside from Alabama’s law, which would allow abortions only in cases when a pregnancy poses a “serious health risk” to the mother, five states have passed bans of their own that would outlaw abortions at eight weeks or earlier.

In Roe, the Supreme Court found that women’s right to an abortion is embedded in the right to privacy provided by the Fourteenth Amendment. But Congress isn’t allowed to make such a sweeping declaration about the Constitution. Lawmakers have to, well, pass laws.

“Congress is trying to create a statutory protection for access to abortion, rather than continue to rely on a constitutional right to privacy that protects access to abortion,” explained Nicole Huberfeld, a Boston University School of Public Health professor who studies healthcare and constitutional law.

This isn’t a new idea: Versions of the Women’s Health Protection Act have been introduced every year since 2013. This time, 42 senators — including the seven running for president — signed on to co-sponsor the bill along with 171 members of the House.

“As extremist lawmakers viciously attack women’s reproductive rights in statehouses across the nation, the Women’s Health Protection Act has never been more urgent or more necessary,” Connecticut Sen. Richard Blumenthal, one of the bill’s co-sponsors, said in a statement. “This issue is about more than women’s health care, it’s about human rights — all our rights.”

Abortion rights advocates applauded the bill’s release, and influential groups like the Center for Reproductive Rights, Planned Parenthood, NARAL Pro-Choice America, and the ACLU have already backed it.

But even with abortion under the glare of a harsh national spotlight, the chances of protecting Roe with federal statutes remain very, very low — unless Republicans suddenly decide that they do support abortion access after all. (Don’t hold your breath.)

So could this bill pass this year?

The bill might be able to pass the Democrat-controlled House, but Republicans rule the Senate. And only two Republican senators support abortion rights: Maine Sen. Susan Collins and Alaska Sen. Lisa Murkowski. Even if both women, every Democrat, and every Independent in the Senate decided to support the Women’s Health Protection Act, it still wouldn’t have the votes to pass.

So, to pass this bill, Democrats will need to control the Senate. And since President Donald Trump, who has veto power, is vehemently opposed to abortion, they’re going to need to snag the White House, too.

Let’s say Democrats win the Senate and the White House in 2020. What then?

Almost every serious contender for the Democratic nomination has said that they want to turn Roe into law, Buzzfeed News reported. Some candidates — like Massachusetts Sen. Elizabeth Warren, New York Sen. Kirsten Gillibrand, and New Jersey Sen. Cory Booker — have also released robust plans detailing how they hope to protect reproductive health in the United States.

Obviously, if one of them wins the White House, the chances of turning Roe into law will metastasize.

But it still won’t be easy. Past attempts to codify Roe have split progressive and moderate Democrats, who couldn’t come to a consensus on issues like how to fund abortions and whether minors who wanted abortions should involve their parents, according to Mary Ziegler, a Florida State University College of Law professor who studies abortion law.

“When you seem to be close to victory, then everybody starts asking for what they actually want, what they think they need to ask for to succeed politically in the moment,” Ziegler said.

The question of what to do about the Hyde Amendment has particularly divided Democrats. Hyde blocks the use of federal dollars to pay for abortions — except in the cases of rape, incest, or a pregnancy that threatens a mother’s life — and must be renewed every year as a rider on the federal budget.

But there are strong signs that Democrats are increasingly inclined to get rid of it. At least 13 presidential candidates have called for Hyde’s repeal, according to Buzzfeed News. Plus, in 2016, for the first time, the Democratic Party platform included repealing Hyde.

Could Supreme Court need to rule on the constitutionality of abortion — again?

If Congress manages to pass the Women’s Health Protection Act, states will probably sue to block it. That would send the bill careening towards the one place that started this entire war: the Supreme Court.

But, intriguingly, legal arguments over the Women’s Health Protection Act might not focus on abortion at all.

Whenever Congress makes a law, it must be able to point to the source of its legal authority to do so. The legislators behind the Women’s Health Protection Act argue that, in part, the bill is legal because people who want abortions and people who provide them frequently leave their own states for the procedure. That makes abortion, under Democrats’ logic, part of interstate commerce — which the Constitution gives Congress the right to regulate. And it’s a power that Congress has long applied very broadly.

“States could certainly put Congress to the proof on that,” Huberfeld said. “That’s where the debate would be. It’s not even necessarily about an abortion per se, but about whether Congress itself has the authority to create this kind of law regulating medical procedures.”

Cover image: Speaker of the House Nancy Pelosi, D-Calif., center, flanked by Rep. Lois Frankel, D-Fla., left, and Rep. Frederica Wilson, D-Fla., right, joins members of the Democratic Women's Caucus and the Pro-Choice Caucus at a news conference on Roe vs. Wade and women's rights, at the Capitol in Washington, Thursday, May 23, 2019. (AP Photo/J. Scott Applewhite)