Protecting abortion care if Roe falls

Nancy Northup has seen lots of attacks on abortion on both the state and federal level. She is president and CEO of the Center for Reproductive Rights, and for 30 years her group has battled hundreds of anti-abortion cases in courts and pushed for full reproductive health care access around the world. The current state of abortion rights, she says, is dire.

“The state legislative attacks on abortion are coming and getting more extreme,” said Northup. “I have never been as alarmed as I am today about the crumbling state of legal protection for abortion access.”

Northup spoke at a virtual news conference alongside the leading members of Congress who introduced a bill on Tuesday to protect the right to abortion care access.

The Women’s Health Protection Act (WHPA — or as insiders pronounce it: “whi-pa”) would guarantee equal access to abortion everywhere in the United States. Because federal law trumps state law, WHPA would become the law of the land if Democrats could secure passage despite a likely GOP filibuster.

The bill has been introduced in previous years, but it has never attracted so much attention as it has this year, according to Sen. Richard Blumenthal (D-Conn.), the bill’s primary author. There are already 48 senators and 176 representatives — including all Wisconsin Democrats — signed on to sponsor the bill.  Blumenthal attributes the level of attention among lawmakers to the U.S. Supreme Court’s decision to take up a Mississippi case that represents a direct challenge to Roe v. Wade and legal abortion. 

Another factor pulling in supporters at record numbers — although no Republicans have signed on yet — is the more than 500 state bills that seek to curtail or eliminate abortion, some even in cases of rape and incest and as early as six weeks after a pregnancy begins.

As one of the key sponsors of the bill, Sen. Tammy Baldwin (D-Wis.), participated in the virtual news conference. She focused on protecting the relationship between patients and doctors from politicians who seek to interpose themselves — and keeping abortion legal after a Mississippi law banning abortion very early on in pregnancy is heard by the U.S. Supreme Court — with the new justices seated by former President Donald Trump indicating that they would consider overturning the precedent set by Roe.

“Simply put, when Roe v. Wade is under attack, millions of women are at risk of losing the freedom to make their own health care decisions and women’s health is threatened,” said Baldwin. “We will not stand by and allow the clock to be turned back 50 years on women’s reproductive health care in America.”

Northup noted that public opinion is on the side of protecting the right to an abortion.

On Tuesday, the Center for Reproductive Rights released a poll conducted by Hart Research showing that 61% of voters nationwide support a national law to protect the right to access abortion by creating a nationwide safeguard against bans and medically unnecessary restrictions on abortion in states.

That is the aim of the Women’s Health Protection Act. Among those surveyed, that concept gets the support of 82% of Democrats, 60% of independent voters (62% of swing voters) and 39% of Republicans. A majority of 63% of suburban women — a key demographic in the 2020 election — also backs such a law.

Other demographic groups favoring a federal law protecting abortion access include voters of color, with support from 79% of Black voters, 67% of Hispanic voters and 67% of Asian American and Pacific Islander voters. Those numbers increase among women of color and among younger women.  Overall, voters under 30 were overwhelmingly supportive. 

When those surveyed were asked about general attitudes toward abortion, the numbers also grew, with nearly seven in 10 voters in favor or protecting the precedent that there is a constitutional right to abortion established by Roe v. Wade.

“Importantly, our legislation creates a safeguard against the medically unnecessary bans and restrictions that are being placed on constitutionally protected reproductive health care,” said Baldwin. “While there are a lot of politicians across the country who want to stand between women and their doctors, and who seem to think that they know better than women and their doctors, the fact is, they don’t know better.”

What if Roe fell? 

Rep. Lois Frankel (D-Fla.) told a story at the press conference from before 1973 when Roe v. Wade became law.

“Years ago, when I was just 15, before Roe v Wade protected a pregnant woman’s liberty to choose to have an abortion without an excessive government interference, I saw something I will never forget,” said Frankel. “I found a friend nearly bleeding to death as a result of a botched abortion. She chose to put herself through it that day because she knew something that only she could possibly know — that she was not ready to become a mother.”

Fifty years later, that memory still weighs on her mind as she fights to pass legislation that would protect abortion in all states regardless of what happens in the pending Supreme Court case.

The Center for Reproductive Rights maintains a color-coded map of state restrictions on abortion as well as pending restrictions that would become  law if the Court overturns Roe v. Wade. 

The map shows  “scores of abortion restrictions and bans making their way through state legislatures across the U.S., including more than 50 laws already enacted. The site states:  “This tool will be fully updated after the end of the 2021 legislative session, which is shaping up to be the most harmful legislative session for abortion rights and access in decades.” It is part of a report — What if Roe fell? — on the center’s site.

The map has four categories: Expanded access, protected, not protected, hostile. Wisconsin falls into the last category: hostile. It shares that designation with 23 other states and three territories where abortion could be prohibited entirely without Roe.

The site notes that Wisconsin has “numerous medically unnecessary restrictions,” and that Republican lawmakers might try to ban abortion, but the current governor is pro-choice and could veto a restrictive law.

What is not mentioned there is that Wisconsin has an 1849 statute that has not been enforced since Roe that would be triggered, which makes abortion a crime with a felony charge for doctors who perform abortions.

Piece of a larger cause

Rep. Ayanna Pressley (D-Mass.) linked this bill defending pro-choice health care to other battles that are raging in politics and protests, all of which she said require “bold and responsive” legislation that includes codifying the right to choose personal health care.

“As our nation continues to grapple with several overlapping crises of public health and economic crises and the crises of white supremacy and police brutality that has robbed us of Black and brown lives, we have the opportunity and the responsibility to speak out against — and actively dismantle— racist and discriminatory policies,” said Pressley. “That includes the oppressive policies that rob people of color, low-income people, immigrants, transgender, gender and non conforming people of comprehensive health care and the right to make decisions for their own bodies.”

“And in this moment, where anti-choice legislators have made it clear that they will stop at nothing to ban abortion care, it’s simply no longer enough to say that you are pro-choice,” Pressley continued. “We have to proactively legislate racial and reproductive justice and meaningfully advance policies that affirm that abortion care is health care. And that health care is a fundamental human right that must be guaranteed to all. That’s what brings us here today, to put forward precise, intentional policy that meets the moment, reflects our values and protects the bodily autonomy of all people, regardless of income, gender identity or race.”

Federal law over state law

The WHPA bill, were it to become law, could be utilized to give guidance to courts where abortion laws at the state level were being challenged, said Baldwin. 

“We’ve seen such attacks on Roe v. Wade at the state level through regulation and laws that have nothing to do with protecting women’s health or safety,” said Baldwin. “This law is intended to basically instruct the court, if you will, that unless it is something that furthers a woman’s health or safety, it should be viewed as an invalid encroachment on a women’s constitutional right to reproductive freedom and abortion care.”

Blumenthal said an attorney general could enforce the law, in addition to courts ruling on it, and that the bill also provides for injunctive relief to stop implementation. “They could determine not only the degree of interference, but also the delay that might result, because obviously time is an important factor,” said Blumenthal.

“With the introduction of the Women’s Health Protection Act, we are sending a clear message to every woman in America,” Baldwin added, “regardless of where she lives, that she deserves the freedom to make her own personal decisions about her health care, her body and her family.”