On Tuesday morning, the Senate Judiciary Committee held a hearing on the "Women's Health Protection Act," which was designed to "remove barriers to constitutionally protected reproductive rights." The bill—introduced last fall by Sens. Richard Blumenthal (D-Conn.) and Tammy Baldwin (D-Wisc.)—aims to stunt the growth of state laws placing unnecessary restrictions on abortion patients, clinics, and doctors.
These new regulations don't directly attack the legality of abortion but instead focus on the supposed medical risks for women—risks which the medical community routinely denies. Still, the new tack seems to be working. Already these sorts of regulations have been forcing abortion clinics to close: A Texas bill passed in 2013 required 14 of the state's 36 clinics to shut down. Laws passed this spring in Mississippi and Louisiana would require all or most of these states' only remaining abortion clinics to close.
Putting an end to this sort of infringement on women's abortion access is a noble goal. But it's one thing to fight states passing these types of laws and another to say the federal government should pass a law blocking states from passing these types of laws. If the state laws are unconstitutional, shouldn't that be left to the courts to determine? Why a federal act?
"We're here today because 200 of these underhanded laws have been passed" in 2011-2014, said Nancy Northup, president of the Center for Reproductive Rights, in today's committee hearing. "It is not right that women should have to go to court year after year to get the medical services that the constitution guarantees them."
I put this question to some libertarians I know, inside and out of Reason, and received a range of responses. Some pointed out that the text of the Women's Health Protection Act was very vague—under what standard do we determine if an abortion restriction is "medically unwarranted" or oppressive? And under what constitutional provision is Congress claiming the power to enact this law?
But others said that when it comes to protecting individuals from government intrusion, federal action can be appropriate; and where government is passing laws to restrict itself to uphold the Constitution, that can be a good thing. "I'm a peoples'-rights advocate, not a states-rights advocate," as one Facebook friend commented. "What matters is if individual liberty is, on net, increased."
It's perhaps worth noting that as courts have been striking down these provisions, less state legislatures have been passing them. According to reproductive rights organization the Guttmacher Institute, the number of new abortion restrictions passed in the first half of 2014 is half that passed in the first part of last year (21 versus 41). Furthermore, the types of abortion restrictions we're seeing now are quite different than the ones passing three or five or 10 years ago. As courts strike down various state restrictions, anti-abortion advocates keep coming up with new tactics. If Congress passed a law banning their pet regulations du jour, you can sure bet new ones will spring up Hydra-like in their place.
But this discussion is largely rhetorical anyway—there's little chance the Women's Health Protection Act will go anywhere. As another Facebook comment noted, this bill is "more a noise-making venture than a legislative one." A New York Times editorial notes that "the bill stands little chance of enactment in this Congress," but still asserts that the Senate hearing "can serve a valuable purpose if it alerts legislators and the public to a pernicious charade by removing the 'patina of respectability' from what are essentially phony restrictions of no medical value."