Senate Rejects Democrats' Bill to Codify Abortion Rights Before & After Fetal Viability

What’s the story?

• The Senate offered yet another bipartisan rejection of Democrats’ Women’s Health Protection Act on Wednesday, which failed to clear a procedural hurdle on a 49-51 vote ― well short of the 60 votes needed for debate to continue. 
• It’s the second time in two and a half months the Senate has rejected the bill, as it failed on a 46-48 vote at the end of February. In the most recent vote, all Republicans plus Sen. Joe Manchin (D-WV) opposed the bill, while the rest of the Senate Democratic caucus supported the bill.
• The vote comes as the Supreme Court is poised to rule on Mississippi’s 15-week abortion ban in the coming weeks or months, potentially overturning abortion precedents in the process.

What would the bill do?

• Introduced by Sen. Richard Blumenthal (D-CT), the Women’s Health Protection Act would create a federal statutory right to abortion that would allow women to undergo abortions without having to comply with nearly all existing state-level abortion restrictions.
• It would prohibit all restrictions on abortion prior to viability and permit abortions after fetal viability if a healthcare provider determines the pregnancy would pose a risk to the mother’s physical or mental health. The bill doesn’t provide a definition of physical or mental health and makes no effort to distinguish between the two.
• Fetal viability would be defined by the bill as whatever point at which a healthcare provider’s good-faith medical judgment finds a reasonable likelihood of sustained fetal survival outside the uterus with or without artificial support. The bill doesn’t define viability in terms of time ― be it trimester, months, or weeks of pregnancy ― and leaves that judgment solely with the healthcare provider.
• The bill would allow non-doctors to perform abortions, allowing healthcare providers such as a certified nurse-midwife, nurse practitioner, or physician assistant to do so. It would also strike down state rules regarding the physical plant, equipment, staffing, or hospital transfer arrangements of abortion facilities, or the credentials or hospital privileges of personnel at such facilities.
• States would be prohibited from imposing a number of limitations or requirements on abortion access, including many of those currently permitted under Roe, Casey, and other precedents or currently codified under laws like the Partial-Birth Abortion Ban Act which was enacted in 2003 and upheld by the Supreme Court in 2007. 
• Notably, the Women’s Health Protection Act would bar a state from prohibiting abortion prior to fetal viability, including a restriction on particular abortion procedures. It would also prohibit states from restricting abortions after fetal viability if a healthcare provider determines continued pregnancy would pose a risk to the pregnant woman’s life or health.
• Among the state-level abortion restrictions that would be invalidated by this bill include those which require a check for a fetal heartbeat or an ultrasound to be performed; waiting periods; parental notification requirements for minors receiving abortions; and the provision of information about alternatives to abortion. 
• The bill may also require states to finance abortion procedures due to a prohibition on rules deemed likely to raise the cost of abortions and strike down state-level restrictions on sex-selective abortions.  
• Further, the bill would preempt the Religious Freedom Restoration Act and similar state-level conscience protection laws, which give religious or denominational healthcare facilities and individual healthcare workers the ability to decline to perform an abortion because it conflicts with their moral or religious views. 
• Additionally, this bill would instruct courts to interpret its provisions and legislative text “liberally” when it’s undergoing judicial review.

What they’re saying

• Moderate Sen. Joe Manchin (D-WV) said that while he supports a “clean” bill to codify Roe v. Wade into law, it was a “shame” that Democratic leadership brought the Women’s Health Protection Act to the floor again because it goes further than simply codifying Roe. He told Politico:

“They’re trying to make people believe that this is the same thing as codifying Roe v. Wade. And I want you to know, it’s not. This is not the same. It expands abortion.

• Centrist Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) are attempting to draft a bill with Manchin that would codify Roe, although it’s unclear whether Majority Leader Chuck Schumer (D-NY) would give it a vote. Collins expressed similar frustration with the Women’s Health Protection Act, telling reporters she backs: 

“(C)odifying abortion rights established by Roe v. Wade and affirmed by Planned Parenthood v. Casey. That’s not what the Women’s Health Protection Act would do. Unlike some far-left activists, Sen. Murkowski and I want the law today to [remain law].” 

• Senate Majority Leader Chuck Schumer (D-NY) spoke on the floor prior to the vote and said of the Women’s Health Protection Act: 

“The legislation before this chamber is straightforward: it would codify what Americans already believe, that the right to choose whether or not to have an abortion belongs to women, not elected politicians. It will preserve the safeguard that conservative Justices seem ready to strike down in just a few weeks. If they follow through with their decision, the United States ― which has always aspired to the expansion of rights ― will take a shameful and repressive step backwards. Our kids will grow up in a country with fewer rights than those who came before them. This decision, if formalized, would be remembered as one of the worst and most damaging cases in the entire history of the Supreme Court.”

• Minority Leader Mitch McConnell (R-KY) also spoke on the floor and criticized the Women’s Health Protection Act as drafted by Democrats:

“Sum it up: This legislation would allow abortions of viable babies, in the ninth month, with no waiting period or informed consent, at the hands of a non-physician, taxpayers could be forced to pay for it, and Catholic hospitals could be forced to perform it. Democrats could not have written more extreme legislation. They have let fringe activists lead them far away from the American people. More than 60% of Americans support 24-hour waiting periods and requiring that doctors have admitting privileges. Even majorities of self-identified Democrats support these things. But Washington Democrats want to roll them back. Only 19% of Americans want abortions to be entirely or mostly legal into the third trimester. But 97% of Washington Democrats back this bill.”

RELATED READING

• Democrats’ Abortion Rights Bill Fails to Advance in the Senate (2/28/22)
• Women’s Health Protection Act (House Version)
• What Did the Supreme Court Say About Abortion Rights in Cases Like Roe, Casey, & Others?

— Eric Revell

(Photo Credit: kelliwhitman via Flickr / Creative Commons)