The Democrats’ bill would codify a right to abortion through nine months of pregnancy in all 50 states.
After the Supreme Court declined to enjoin a Texas law that seeks to prohibit abortions in most cases after a baby’s heartbeat is detected, Speaker Nancy Pelosi announced that the House will vote next week on the Women’s Health Protection Act — a bill that would wipe almost all state-level abortion restrictions off the books.
“This ban necessitates codifying Roe v. Wade,” she tweeted.
The Court’s cowardly decision to uphold a flagrantly unconstitutional assault on women’s rights and health is staggering. The House will bring up Congresswoman Judy Chu’s Women’s Health Protection Act to enshrine into law reproductive health care for all women across America.
— Nancy Pelosi (@SpeakerPelosi) September 2, 2021
The bill, if enacted, would establish a federal right to abortion through all nine months of pregnancy if a single doctor asserted the abortion was necessary to protect the mental and emotional health of a woman seeking an abortion. As I wrote when the bill was reintroduced in the previous session of Congress:
The measure wouldn’t merely prohibit states such as Georgia and Alabama from banning abortion early in pregnancy if Roe v. Wade were overturned. It would also invalidate most state laws limiting late-term abortion, including Pennsylvania’s 24-week limit, under which notorious abortionist Kermit Gosnell was convicted in 2013 for killing 21 infants in utero (in addition to his conviction for murdering three infants with scissors after they had been born). Indeed, it would wipe almost all state limits on abortion, including mandatory waiting period and ultrasound requirements, off the books.
Essentially, congressional Democrats seek to take the standard for late-term abortion proposed earlier this year in Virginia — and shelved after the bill’s chief sponsor Kathy Tran acknowledged it would allow abortion through all nine months of pregnancy if a lone doctor asserted it was necessary for mental-health reasons — and impose it on every state that provides greater protection for unborn children late in pregnancy.
The federal legislation would require states to permit abortion after an unborn child is viable (that is, old enough to survive outside the womb) if a single doctor asserts that an abortion is necessary to protect the mother’s “health.” The text of the bill explicitly instructs the courts to “liberally” interpret the legislation, and the bill “doesn’t distinguish” between physical and mental health, as its chief sponsor Senator Richard Blumenthal of Connecticut has said.
As Blumenthal said when he first introduced the bill in 2013: “The basic principle [of the bill] is that there can be no restriction that is not also imposed on a medically comparable procedure. If they single out abortion or reproductive rights, it’s going to fall foul.”
Since the bill was first introduced in 2013, it has never been brought to the floor of the House or the Senate for a full vote.
But times have changed. Pro-life Democrats effectively have gone extinct in the House, which recently passed appropriations bills that would provide unlimited taxpayer funding of abortion for Medicaid recipients and allow foreign-aid programs to provide taxpayer funding of elective abortion around the globe. It remains to be seen if any House Democrats balk at the Women’s Health Protection Act.
It will have a tougher time getting past the Senate. A first step toward Senate passage of the bill would be the abolition of the filibuster, and Democratic senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have vowed they will keep the 60-vote threshold for legislation.
Even without the filibuster, it’s not clear that the WHPA has 50 Senate votes. Neither Manchin nor Senator Bob Casey Jr. of Pennsylvania, both self-described pro-life Democrats, has cosponsored the WHPA. As noted above, the bill is so extreme that it would wipe away Pennsylvania’s 24-week abortion limit, under which Kermit Gosnell was convicted of killing 21 infants in utero.
Susan Collins of Maine and Lisa Murkowski of Alaska, the two Republican senators who generally support a right to abortion, have not cosponsored the WHPA either.
On Thursday, Democratic senator Tina Smith of Minnesota said that the bill doesn’t have a chance of passing the Senate. “I support ending the filibuster. I support codifying Roe v Wade. I would support reforming the Supreme Court,” Smith told the Huffington Post. “But we need to be real: There are not votes in the U.S. Senate to do any of those things.”
“The only thing that I know to do,” Smith added, “is go out there and organize, organize, organize and win elections.”