Vox: Democrats have a high-risk, high-reward plan to save Roe v. Wade

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The Women’s Health Protection Act, explained.

Roe v. Wade is on life support, and the Supreme Court is likely to pull the plug very soon.

Last week, the Supreme Court permitted a Texas law that effectively bans abortions after the sixth week of pregnancy — before many people are even aware they are pregnant — to take effect. Meanwhile, the Court is expected to decide a case by June 2022, Dobbs v. Jackson Women’s Health Organization, which it could use to explicitly overrule Roe v. Wade.

According to the Guttmacher Institute, eight states still have abortion bans on their books that were enacted before Roe was decided in 1973. Eleven others enacted near or total bans on abortion that trigger automatically if Roe is overruled. So, by this time next year, there is a very good chance that abortion will be illegal in those states and possibly several other red ones.

With the increasingly likely demise of Roe looming on the horizon, Speaker Nancy Pelosi (D-CA) announced last week that the US House will soon hold a vote on the Women’s Health Protection Act (WHPA), legislation that would enshrine a nationwide right to abortion and preserve many of the specific legal protections recognized by Supreme Court decisions like Roe and Planned Parenthood v. Casey (1992).

 Ting Shen/Bloomberg via Getty Images

Reproductive rights activists say it’s a well-thought-out bill that not only expands federal protections but also anticipates potential challenges from conservative state governments. It has widespread, but probably not universal, support among elected Democrats. All of the major Democratic presidential candidates, including President Joe Biden, endorsed legislation “codifying Roe” during the last election cycle. The WHPA has 205 co-sponsors in the House and 47 in the Senate.

Realistically, however, the bill faces a difficult uphill climb before it could become law. Even if it passes the House, it’s unclear whether the WHPA has majority support in the Senate. Neither Sen. Bob Casey (D-PA), who has voted for abortion restrictions in the past, nor conservative Democratic gadfly Sen. Joe Manchin (D-WV) cosponsor the legislation.

If Casey and Manchin oppose the bill, Democrats will need to pick up support for it from nominally pro-abortion Republicans such as Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK). And that’s assuming Democrats have the votes to reform the filibuster, which allows the Republican minority to block most legislation that is not supported by at least 60 senators. A small group of Democratic senators, including Manchin, oppose such a reform.

And even if WHPA does become law, there’s a serious risk that the Supreme Court could strike it down. Although current Supreme Court precedents permit Congress to protect abortion rights, the entire purpose of the WHPA is to preserve those rights if the Supreme Court decides to overrule major decisions like Roe and Casey.

So there’s no guarantee that this Supreme Court wouldn’t also overrule its previous decisions laying out the scope of Congress’s power to regulate abortion care and health care more broadly.

The bottom line, in other words, is that Democrats do have a plan to restore abortion rights in the very likely event that the Court takes them away. But their plan is unlikely to go anywhere unless Democrats gain seats in the 2022 congressional midterms. And even if that does happen, the WHPA will still have to survive contact with the very same Supreme Court that has already started to gut Roe.

So what does the Women’s Health Protection Act do?

Although Democrats often describe the WHPA as a plan to “codify Roe,” the bill would not literally write the Court’s decision in Roe v. Wade into federal law. The Court’s 1973 decision in Roe divided pregnancy into trimesters, with states gaining more power to regulate abortion as pregnancies advance into later trimesters. WHPA, by contrast, primarily seeks to protect the abortion right “prior to fetal viability” — the moment when “there is a reasonable likelihood of sustained fetal survival outside the uterus with or without artificial support.”

Under the WHPA, states could not enact “a prohibition on abortion at any point or points in time prior to fetal viability, including a prohibition or restriction on a particular abortion procedure.” It also prohibits post-viability restrictions on abortion “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.”

Additionally, the bill includes several provisions preventing states from enacting specific restrictions on abortion that anti-abortion lawmakers have pushed in the past.

In Whole Woman’s Health v. Hellerstedt (2016), for example, the Supreme Court struck down a Texas law that required abortion providers to maintain a difficult-to-obtain credential, while also imposing expensive architectural requirements on abortion clinics. The Court found that these restrictions imposed unnecessary burdens on abortion patients, while doing little or nothing to make abortions safer.

 Michael M. Santiago/Getty Images

The WHPA would prohibit similar restrictions on abortion facilities and providers, unless the same restrictions are also imposed “on facilities or the personnel of facilities where medically comparable procedures are performed.” Thus, states would retain the power to regulate health care generally — and to subject abortion providers to the same licensure and other requirements imposed on all health providers — but not to impose discriminatory restrictions on abortion care.

Another provision of the WHPA prevents states from requiring abortion patients to undergo unnecessary medical tests. The bill protects abortion providers’ ability to provide certain services via telemedicine. And it bans state laws mandating that patients must disclose why they wish to have a pre-viability abortion.

Thus, if the WHPA is enacted — and if it is ultimately upheld by the Supreme Court — the bill would not simply enshrine a right to an abortion into the United States Code. It would also preempt a raft of state laws seeking to drive up the cost of abortions, to make abortions less safe or more difficult for patients, and to prevent abortion clinics from operating.

But is the WHPA constitutional?

Under the modern understanding of the Constitution, a federal law regulating abortion — like other federal regulation of health providers — is unambiguously constitutional.

Congress’s power to regulate is broad but not unlimited. The Constitution lays out a list of powers that Congress is allowed to exercise, such as the power to raise armies or the power to establish post offices.

One of these powers is the ability to enact legislation enforcing rights protected by the 14th Amendment. Both Roe and Casey rooted the right to an abortion in this amendment’s guarantee that no one may be denied “liberty” without due process of law. So, as long as Roe and Casey remain good law, Congress may enact laws protecting abortion rights.

But, of course, the whole reason Democrats want to pass the WHPA is because Roe and Casey are under threat. So Congress cannot realistically rely on its power to enforce the 14th Amendment if it wants to sustain legislation protecting abortion. The Supreme Court is likely to change its understanding of which rights are protected by the 14th Amendment very soon.

Alternatively, the WHPA could also be sustained under Congress’s broad power to regulate the national economy. This power derives from two provisions of the Constitution, which permit Congress to “regulate commerce … among the several states,” and to “make all laws which shall be necessary and proper for carrying into execution” this power to regulate commerce.

As the Supreme Court explained in Gonzales v. Raich (2005), Congress may use its power over national commerce to regulate any “economic ‘class of activities’ that have a substantial effect on interstate commerce.” The Court’s decisions permit federal laws regulating landlords, family farmers, and other businesses and professionals that primarily serve local consumers. They permit federal regulation of abortion.

Abortion is a medical procedure that is provided by professionals, who typically charge a fee. Some of these doctors travel across state lines to provide this service. They are trained at medical schools all over the country, perform their services in clinics funded by donors from other states, use medical equipment manufactured in other states — you get the idea.

Abortion, in other words, is an economic activity that has a substantial effect on interstate commerce. So, under Raich, Congress could pass a law protecting abortion rights.

But this modern understanding of the Constitution isn’t exactly beloved by conservatives. And if Democrats pass a law like the WHPA, a Supreme Court dominated by Republican appointees might overrule Raich — or, at least, limit it, potentially doing considerable violence to Congress’s ability to provide other legal protections in the process.

If the Supreme Court strikes down the WHPA, that would have profound implications for American health care

If the Supreme Court held that Congress may not regulate abortion, that decision could have a sweeping impact on American law.

For one thing, such a decision would strip abortion providers and their patients of rights they currently enjoy under federal law. The Freedom of Access to Clinic Entrances Act (FACE) makes it a crime to use force, the threat of force, or “physical obstruction” to block access to an abortion clinic. If Congress loses its ability to regulate abortion, FACE could no longer be enforced — which could mean blockades in front of abortion clinics even in states where abortion is legal.

More broadly, a Supreme Court decision invalidating a law like the WHPA could endanger all federal regulation of health providers.

 Olivier Douliery/AFP via Getty Images

Recall that the constitutional argument for the WHPA rests on the impact abortion has on interstate commerce. Abortion is performed by doctors trained in many states, using equipment that travels in interstate commerce, and so forth. But the exact same argument could be made about any medical procedure. If Congress can’t regulate abortion, it can’t regulate pap smears, colonoscopies, and open-heart surgeries either. It also may not be able to regulate the insurers who pay for such services. Laws like Obamacare, with its web of regulations governing health insurance and protecting people with preexisting conditions, could potentially be in trouble.

A decision striking down the WHPA, in other words, would most likely strip Congress of its power to regulate much of the health care system.

Many of the WHPA’s supporters acknowledge the intimate constitutional ties between the federal government’s ability to regulate abortion and its ability to regulate the practice of medicine generally — indeed they are counting on it.

After Biden and other Democratic candidates endorsed the WHPA, I asked Susan Inman — then a lawyer with the Center for Reproductive Rights and now a Justice Department attorney — whether the Court might strike down a law like the WHPA. She told me the justices “would have to do somersaults and backflips” to strike down a law protecting abortion without also dismantling much of Congress’s ability to regulate health care. And she warned that a decision stripping away too much of Congress’s ability to regulate health care would “topple the whole system.”

She’s right. If Congress’s power to regulate interstate commerce does not extend to a law regulating abortion care, it’s hard to see how it would extend to any other form of health care. FACE, much of the Affordable Care Act, and other federal laws regulating health care could fall along with the WHPA.

The question facing congressional Democrats, in other words, is whether they want to tempt the wrath of a Supreme Court that is extraordinarily hostile to abortion rights in order to write those rights into federal law.