The Senate yesterday rejected a bill that would have blocked state restrictions on abortion, including bans that are likely to be passed or will take effect after the Supreme Court overturns Roe v. Wade, as it is expected to do soon. Democrats touted the bill, which was supported by 49 senators, as a way to preserve the rights protected by Roe. But it goes much further than that, overriding existing regulations that have been upheld by the courts under current precedents or have yet to be tested. And it does that without citing any constitutional authority, a dangerous precedent that invites a future Congress controlled by Republicans to ban abortion nationwide without even paying lip service to limits on the federal government's powers.
The Women's Health Protection Act of 2022 says states may not ban abortion prior to "viability" (i.e., the point at which a fetus can survive outside the womb), which nowadays is generally said to occur around 23 or 24 weeks into a pregnancy. The bill also prohibits bans on post-viability abortions "when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient's life or health."
That much is consistent with Roe and Planned Parenthood v. Casey, the 1992 decision in which the Supreme Court reaffirmed Roe's "central holding." Casey prohibits laws that impose an "undue burden" on the right to abortion, including regulations that place "a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." And while states may restrict post-viability abortions, Casey says, those regulations must include "exceptions for pregnancies which endanger the woman's life or health."
If the bill had stopped there, it probably would have attracted majority support in the Senate, although still not enough votes to overcome a filibuster. Two Republican senators who support abortion rights, Susan Collins (Maine) and Lisa Murkowski (Alaska), voted against the bill. They had pitched a narrower bill that would have copied Casey's language, barring regulations that impose an "undue burden" on abortion access.
"I was hopeful that the Democratic Party, having control of the agenda, would put a piece of legislation forward that would codify Roe v. Wade," said Sen. Joe Manchin of West Virginia, the one Democrat who voted against the Women's Health Protection Act. "For me, that would be the reasonable, rational thing to do." Manchin complained that the bill would instead "expand abortion."
It is not hard to see why he said that. Among other things, the bill aims to block state restrictions on abortion pills. It says a state may not limit "a health care provider's ability to prescribe or dispense drugs based on current evidence-based regimens or the provider's good-faith medical judgment" unless the regulation is "generally applicable to the medical profession." The bill also prohibits states from limiting "a health care provider's ability to provide abortion services via telemedicine" unless the restriction is "generally applicable to the provision of medical services via telemedicine."
Those provisions would not only preclude outright bans on drug-induced abortions. They would also stop states from requiring in-person medical visits to obtain abortion pills, as the Food and Drug Administration used to do and 19 states currently do.
The Women's Health Protection Act would have prohibited "a requirement that, prior to obtaining an abortion, a patient make one or more medically unnecessary in-person visits to the provider of abortion services." Casey itself upheld a Pennsylvania requirement that seems to violate that restriction. The regulation required that doctors provide information about "the nature of the abortion procedure, the attendant health risks and those of childbirth, and the 'probable gestational age' of the fetus" at least 24 hours before an abortion.
The Senate bill also targets laws that require health care providers to "perform specified tests, services, or procedures prior to or subsequent to the abortion." That restriction likewise rules out regulations that have survived court challenges.
In 2019, the U.S. Court of Appeals for the 6th Circuit upheld a Kentucky law that required abortion providers to "auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient." In a 2018 decision, the 6th Circuit noted, the Supreme Court had "clarified that no heightened First Amendment scrutiny should apply to informed-consent statutes like the abortion-informed-consent statute at issue" in Casey. Because the Kentucky law, "like the statute in Casey, requires the disclosure of truthful, nonmisleading, and relevant information about an abortion," the appeals court said, "we hold that it does not violate a doctor's right to free speech under the First Amendment."
That case involved a First Amendment challenge. But the 6th Circuit took it for granted that "informed consent" statutes are constitutional under Casey as long as the information is accurate, even when they require "specified tests, services, or procedures."
Another provision of the Women's Health Protection Act prohibits states from regulating "the physical plant, equipment, staffing, or hospital transfer arrangements of facilities where abortion services are provided, or the credentials or hospital privileges or status of personnel at such facilities," when those requirements are "not imposed on facilities or the personnel of facilities where medically comparable procedures are performed." That seems generally consistent with the Supreme Court's rulings in the 2016 case Whole Woman's Health v. Hellerstedt and the 2020 case June Medical Services v. Russo. But the bill's broad language goes beyond the policies at issue in those cases, which involved local admitting privileges for doctors who perform abortions and a requirement that abortion clinics comply with the same standards as "ambulatory surgical centers."
In addition to the policies it explicitly prohibits, the bill forbids any abortion-specific "limitation or requirement" that "impedes access to abortion services," which is a capacious catch-all category. In deciding whether a regulation violates this provision, the bill says, a court "may consider" several factors, including whether the regulation is "reasonably likely" to "delay or deter some patients in accessing abortion services," "directly or indirectly increase the cost of providing abortion services or the cost for obtaining abortion services," or "have the effect of necessitating a trip to the offices of a health care provider that would not otherwise be required."
The bill's critics, in short, are right that it goes far beyond preserving the rights protected by Roe and Casey. Democrats prefer to glide over that point.
"Is this a bill to preserve access, as it is today with Roe in place," CNN's Victor Blackwell recently asked Sen. Mazie Hirono (D–Hawaii), "or is the goal of the bill to expand it?" Hirono's response was notably evasive:
The bottom line is that this is a bill that is going to enable the woman to make the decision. So we can have all kinds of arguments, getting into the weeds, about this, that, or the other thing, but the fact of the matter is that the radical, right-wing justices put on the Court by the Republicans, particularly the last three justices, have decided that they are just going to overturn almost 50 years of a constitutional right. That is the bottom line.
Blackwell, who noted the objections from Collins and Murkowski, rejected Hirono's characterization of his question. "It's not getting into the weeds on this thing or the other," he noted. "It's what the legislation is. It's what is guaranteed by it."
Politicians like Hirono do not want voters to focus on "what the legislation is." They want voters to focus on how Republicans are changing the status quo, without acknowledging that Democrats want to change it in a different direction.
The Women's Health Protection Act is notably silent on the question of where Congress gets the authority to dictate state abortion policies. A different version of the bill, which the House passed last year, frames it as an exercise of the power to regulate interstate commerce:
Abortion restrictions substantially affect interstate commerce in numerous ways. For example, to provide abortion services, health care providers engage in interstate commerce to purchase medicine, medical equipment, and other necessary goods and services. To provide and assist others in providing abortion services, health care providers engage in interstate commerce to obtain and provide training. To provide abortion services, health care providers employ and obtain commercial services from doctors, nurses, and other personnel who engage in interstate commerce and travel across State lines.
Assuming that the Supreme Court overturns Roe and Casey in Dobbs v. Jackson Women's Health, the abortion case it is now considering, that would mean Congress has no power to regulate abortion (or abortion laws) under the 14th Amendment. "Maybe they could try under the commerce power," South Texas College of Law Houston professor Josh Blackman said in a recent interview with Reason's Nick Gillespie, "but it would be a stretch….I think that sort of legislation is dead on arrival after the Dobbs case."
When Gillespie pressed Blackman on that point, noting that Congress has used the Commerce Clause for many purposes only tenuously related to interstate commerce, Blackman replied: "I don't think that legislation would work when we're talking about interstate commerce….I suppose the Congress could say every abortion is a type of economic activity because it involves the surgical tools and things of that nature. But this would pretty clearly be seen as a way of getting around the Dobbs case. I think it would probably not work."
I am not so sure that courts would reject a Commerce Clause justification for something like the Women's Health Protection Act. That sort of reasoning, although it seems far afield from the original understanding of the Commerce Clause, has been blessed by the Supreme Court. Furthermore, it can easily be turned against abortion rights.
The federal Partial-Birth Abortion Ban Act, a 2003 law that the Court upheld in 2007, applies to late-term abortions using the "dilation and extraction" method that are performed "in or affecting interstate commerce." As Independence Institute scholar David Kopel and University of Tennessee law professor Glenn Reynolds noted in a 1997 Connecticut Law Review article, this language is baffling "to any person not familiar with the Commerce Clause sophistries of twentieth century jurisprudence….Unless a physician is operating a mobile abortion clinic on the Metroliner, it is not really possible to perform an abortion 'in or affecting interstate or foreign commerce.'"
Those "Commerce Clause sophistries" are so routine nowadays that they did not even figure in the challenge to the federal ban. The Court concluded that the law, because of its narrow scope, did not impose an "undue burden" on abortion. The justices did not pause to consider how the power to regulate interstate commerce has been transformed into a license for pretty much anything Congress wants to do.
That is hardly surprising, since the Court had ruled two years before that the Commerce Clause is so elastic that it allows Congress to criminalize the state-blessed production and possession of medical marijuana, even when it is never sold and never leaves the grower's property, let alone crosses state lines. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas observed in his dissent, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."
It seems to follow that if Congress can prohibit barriers to abortion under the Commerce Clause, it can also erect barriers. Once Roe and Casey are overturned, those barriers need not be limited to restrictions like the one imposed by the Partial-Birth Abortion Ban Act, which the Court deemed modest enough to pass muster under Casey. If you accept the constitutional reasoning on which the House version of the Women's Health Protection Act relies, Congress could even impose a comprehensive ban on abortion.
The Senate version of the bill dispenses with even the pretense that Congress has to explain how its legislation fits within one of its enumerated powers. So does President Joe Biden's statement endorsing the bill. The implication is that a Republican Congress, with the assistance of a Republican president, could simply ban abortion nationwide without bothering to cite any constitutional authority.
Both parties are accustomed to flouting the Constitution when it stands in the way of their agendas. They never seem to realize that the license they exercise today can be used by their opponents tomorrow.