Kamala Harris has been singularly obsessed with promoting abortion.
Kamala Harris has been singularly obsessed with promoting abortion.
A s vice president, Kamala Harris was called the “border czar” — a task that some say was beyond her abilities. But as “the White House’s voice of unflinching support for reproductive health rights,” she has advanced a pro-abortion agenda far more passionately.
Here I do not use the word “pro-choice,” for good reason. Over a decade ago, abortion-industry groups such as Planned Parenthood publicly abandoned that slogan. They said it no longer resonated with a younger generation – which would be a surprise to the rank-and-file supporters whose favorite sign at rallies remains “My Body My Choice.”
Another likely reason for the word change is that “choice” is a double-edged sword. It may mean that women are equally entitled to a different choice, that medical professionals may choose not to provide abortions, and that Americans can choose not to subsidize it with their tax dollars.
Pro-abortion groups have long opposed respecting these choices. If abortion is “basic health care,” all doctors and nurses must facilitate it, taxpayers must fund it, and women who do not avail themselves of it are allowing a dangerous health condition to get worse. The new watchword is “access,” which must be guaranteed even for people who do not want it — as when several states, including my own state of Washington, have made it illegal to sell health coverage to pro-life Americans that includes maternity benefits but not elective abortion.
To see how Kamala Harris’s goals exemplify this “Abortion 2.0” agenda, we should review the legislative proposals she has endorsed and co-sponsored — and what she has voted against.
As a U.S. senator, Harris was an original co-sponsor of the federal “Women’s Health Protection Act” (WHPA) in 2017 and 2019. She voted for it as senator, and as vice president presided over the unsuccessful Senate vote to pass it in 2022. It is the flagship legislation on abortion endorsed by every major national pro-abortion organization, as part of a Blueprint for Sexual and Reproductive Health, Rights, and Justice.
Harris and President Biden have repeatedly said this bill would simply “codify” Roe v. Wade or “restore” its policy. That claim is egregiously false. The bill would turn Roe on its head. What Roe described as a woman’s private choice that government should not prohibit would become a positive social good and public entitlement. To maximize abortion “access,” it authorizes the U.S. attorney general, and anyone (e.g., an abortionist seeking more profits) who claims to be “adversely affected” by a law limiting or regulating abortion, to file suit against that law in federal court. The courts, in turn, are instructed to “liberally construe” the law’s provisions to serve that purpose.
Differences between the Supreme Court’s 1973 Roe v. Wade decision and the WHPA are many. To be sure, Roe fabricated an abortion “right” that overrode the laws of all 50 states, even the most permissive; no one can describe it as a compromise, except when compared with this bill’s extremism.
First, Roe invalidated laws banning abortion, but recognized valid interests in regulating it to serve women’s health and informed consent. The WHPA ignores these interests, potentially invalidating hundreds of state laws that have been allowed under Roe. Even laws requiring abortions to be performed by a licensed physician — laws Roe permitted throughout pregnancy — are forbidden.
Safety regulations for women, protecting them from unscrupulous or incompetent abortion clinics, are explicitly disallowed — unless lawmakers can prove to the federal courts by “clear and convincing evidence” that this life-saving goal could not have been served through a law more robustly promoting abortion “access.” It is difficult to see how that heavy burden of proof could be met, except by passing the more abortion-friendly law first and watching women die. “Abortion rights” apparently means that abortion itself has rights, which can override the rights of women.
Second, Roe acknowledged a legitimate governmental interest in the “potential life” of the unborn child — though that recognition wielded little real impact until later decisions on public funding. In 1980, upholding the Hyde amendment that prevents federal funding of most abortions, the Court said: “Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.”
Later, the Court spoke more simply and accurately of respecting “the life of the unborn.” The WHPA treats abortion solely as involving the woman’s (or “pregnant patient’s”) body. Even words like “embryo” and “fetus” are absent. The bill does define “viability” as a likelihood of “fetal survival” outside the womb, implying that the child is not even a “fetus” until birth. The only phrase describing him or her before birth is “fertilized egg.”
Third, Roe was based on the court’s view of women’s privacy (and in the 1992 Planned Parenthood v. Casey decision reaffirming Roe, of their liberty). Words like “privacy,” “free,” “liberty,” and “choice” are absent from the WHPA, though Biden and Harris freely use them to misrepresent the bill. It never even mentions consent, informed or otherwise. The fundamental “right” of abortion equally belongs to abortion practitioners, and to men who want to “assist and support” women and girls in accessing abortion. That right, “liberally construed,” seems to include the sexual abuser of a minor child or a sex trafficker.
Fourth, there is the matter of conscience rights. Roe’s companion decision Doe v. Bolton spoke favorably of laws allowing health-care providers to decline involvement in abortion; and the federal government and nearly all states have maintained such laws for decades. In fact, most OB/GYNs choose not to perform abortions. That choice, of course, limits ready “access” to abortion, so these “refusal clauses” (as the ACLU and other WHPA supporters call them) would be attacked in court.
The WHPA even explicitly overrides the federal Religious Freedom Restoration Act as a legal defense. (This is the only mention of “freedom” in the 17-page bill, in a provision that denies it.) The very existence of Catholic health-care facilities, which provide about one-sixth of hospital beds in the nation, would be at risk. But men, women, and children who thereby lose local access to life-saving health care will no doubt be comforted to know that they can easily get an abortion.
Finally there is the much-debated question of whether abortions would have to be allowed “until birth.” Roe did not overturn all regulation of abortion after viability, when the child may be able to survive outside the womb, but did say abortion cannot be prohibited at that stage if the abortion practitioner claims it is necessary to preserve the woman’s “health.” Doe v. Bolton defined “health” to include any aspect (emotional, familial, etc.) of the woman’s “well-being.”
The WHPA manages to make this policy broader, in three ways. First, it leaves “health” completely undefined, so even Roe’s broad description will not lead an abortion practitioner to hesitate before acting. Second, besides forbidding states to ban these late-term procedures, it forbids any regulation at this stage (such as informed-consent requirements or safety protections) that are forbidden for early abortions. Third, states must allow post-viability abortions whenever the abortion practitioner judges that “continuation of the pregnancy” could adversely affect the woman’s (undefined) “health.”
That situation commonly occurs when a healthy woman is at or past her due date with a healthy baby, and doctors begin to consider inducing labor. Such “termination” of pregnancy is fully consistent with the life and health of the child — that is what “viability” means. This bill says that in such a case, one can always perform an abortion instead — not because it is “necessary” but simply because someone wants it. So yes, much more clearly than under Roe, abortions must be allowed to the moment of birth.
During her bid for the presidency in 2019, Harris unveiled a plan to do what may have seemed impossible: making the WHPA even more extreme. Any state that had introduced laws violating Roe v. Wade in the previous 25 years would have to receive pre-approval from the Department of Justice before a new abortion law takes effect. A law found to contradict either Roe or the WHPA would be null and void, and would never reach the courts. On this one issue, the federal executive branch would have a veto power usurping the role of the governors of all 50 states.
When Kamala Harris says of abortion, “We are not going back,” she means we are not going back to Roe v. Wade.
The other abortion bill Senator Harris co-sponsored was the “EACH” (Equal Access to Abortion Coverage in Health Insurance) Act. It would rescind the Hyde amendment and all other longstanding federal restraints on taxpayer funding of abortion, require federal health facilities to provide abortions, attack state and local laws that limit public abortion funding, and declare a sense of Congress that abortion coverage should be required without restriction in all private health plans. This bill would also explicitly override the Religious Freedom Restoration Act. In each of these respects, it attacks policies that were perfectly valid under Roe.
During the 2020 presidential campaign, Harris taunted Joe Biden for his longstanding support of the Hyde amendment. He changed his position, and since then he has proposed rescinding it in his annual budget proposals to Congress. As president, Harris would likely pursue this goal more aggressively.
In 2020, Senator Harris opposed allowing a vote on legislation to require that infants born alive during an attempted abortion receive the same level of health care as infants of the same stage of development who had been intended for survival. Fifty-six senators, including some Democrats, voted for the motion. Harris opposed it although her home state of California, where she has served as attorney general, has had a virtually identical law since 1996. Abortion supporters said it would override doctors’ case-by-case medical judgments — but the only condition it would exclude from medical decision-making, regarding a born patient who is a constitutional person, is that of being unwanted. Senate Democrats continue to block this modest bill.
A narrow Republican majority in the House, and the need for 60 votes to invoke cloture and end a filibuster in the Senate, have blocked proposals for unlimited abortion and abortion funding nationwide. But in September, Harris announced a solution: “I think we should eliminate the filibuster for Roe and get us to the point where 51 votes would be what we need to actually put back in law the protections for reproductive freedom.”
The Senate policy requiring a supermajority to consider legislation is over a century old — but she would rescind it, although a later Republican majority could use that change to pass laws in the opposite direction. She proposed the rule change solely to enact “Roe” (or rather for a policy that is more extreme). No other issue is described as having this importance and urgency.
It does not seem an exaggeration to say that Kamala Harris has been singularly obsessed with promoting abortion. Her agenda reaches far beyond anything the Supreme Court has ruled, attacking laws that have long been allowed by the court. If elected to the top public office in the land, she can be expected to treat the past as prologue.