Pro-choice activists demonstrate outside the Supreme Court on October 4, 2021, in Washington, D.C. (Kevin Dietsch | Getty Images)
WASHINGTON — The U.S. House passed legislation Friday that would reinstate access to abortion, though it’s highly unlikely the two bills approved on mostly party-line votes — or more that will come in the weeks ahead — would clear the 50-50 Senate.
One measure that House members engaged in passionate debate over Friday would make it clear that patients seeking abortions can travel without penalty to states where it’s legal, if the procedure is banned or heavily restricted in their home states.
Another bill would reinstate a nationwide right to an abortion, rejecting a U.S. Supreme Court ruling in June that overturned the landmark Roe v. Wade decision.
The bill to protect patients’ rights to travel for abortion services passed 223-205, with 220 Democrats and three Republicans voting in favor. The Republicans were Brian Fitzpatrick of Pennsylvania, Fred Upton of Michigan and Adam Kinzinger of Illinois.
Pediatrician speaks out
Washington Democratic Rep. Kim Schrier, a pediatrician, advocated for passage, saying that Republican abortion policies that don’t include exceptions for rape or incest are barbaric.
“I have been in the exam room with teens facing unplanned pregnancies and with mothers who find out the pregnancy they are so excited about is not a viable one,” Schrier said during floor debate.
“These are deeply personal circumstances and frankly, when and whether and under what circumstance to become a mother is the single most important decision a woman will ever make. And that must be hers to make.”
The government, she said, “has no place in the exam room.”
But Rep. Cathy McMorris Rodgers, a Washington state Republican who led the GOP side, urged a vote against the nationwide abortion bill, saying it would permit abortions at any stage of pregnancy and would fail to bar termination of a pregnancy for specific reasons, such as gender or race.
“This is not about codifying Roe v. Wade … because it nationalizes abortion for all nine months of pregnancy,” said McMorris Rodgers.
During 2020, there were 930,160 abortions performed in the United States, according to the Guttmacher Institute. The vast majority of those abortions, according to the Centers for Disease Control and Prevention, take place during the first trimester.
During 2019, CDC data shows that 93% of abortions took place before the 13th week of pregnancy, or the first trimester. Six percent of abortions took place between 14 and 20 weeks of gestation, before the fetus is viable. The remaining 1% of abortions took place after 21 weeks of pregnancy, according to analysis by the Pew Research Center.
Patients who receive abortions later in pregnancy often do so because of “medical concerns such as fetal anomalies or maternal life endangerment, as well as barriers to care that cause delays in obtaining an abortion,” according to an analysis by the Kaiser Family Foundation.
Supreme Court decision
Pennsylvania Democratic Rep. Madeleine Dean said the U.S. Supreme Court’s decision last month to undo the constitutional right it established in the 1973 Roe v. Wade case showed the conservative justices are no longer behaving as constitutional lawyers, but as theocrats.
“In overturning Roe and sending a woman’s reproductive freedoms to state politicians — largely white and male — these justices have decided their faith should determine everyone else’s rights, not the Constitution,” Dean said.
Debate over the right-to-travel bill was also along party lines.
Majority Leader Steny Hoyer, a Maryland Democrat, said Republicans in state legislatures discussing travel bans could lead to “draconian, authoritarian laws.”
“I’m old enough to remember when it wasn’t legal and when people died in back alleys after going to charlatans, not having proper medical care,” Hoyer said. “Let’s not return to those dark and tragic days.”
California Democratic Rep. Jackie Speier said the abortion travel bill is necessary because the Supreme Court could also undo the constitutional right to travel it recognized under the Fifth Amendment.
“Interestingly enough, the right to travel, those words, are not in the Fifth Amendment,” Speier said. “So if we have an originalist court, we do have to pass this bill … because women should be able to travel. And right now we cannot even guarantee that to a woman who wants to get an abortion.”
The Supreme Court’s opinion in the Kent v. Dulles case in 1958 determined “the right to travel is a part of the ‘liberty’ of which a citizen cannot be deprived without due process of law under the Fifth Amendment.”
Florida Republican Rep. Kat Cammack argued Democrats’ concerns about state laws that may restrict travel and Democratic lawmakers’ questions about how exactly state governments would enforce those laws were absurd.
“The notion that women will somehow be stopped at checkpoints is insane,” Cammack said.
It’s unlikely either bill the House passed Friday will clear the evenly divided U.S. Senate, where at least 10 Republicans would need to vote to move past the legislative filibuster.
The travel bill, referred to as the Ensuring Access to Abortion Act of 2022, would prevent states, or people empowered by states’ laws, from interfering with abortion providers in legal states, people traveling to those states, or people helping people travel to access abortion.
The U.S. attorney general or anyone harmed by a violation of the travel bill would be allowed to bring a civil case in U.S. district court.
The Women’s Health Protection Act of 2022 would reinstate nationwide abortion access, permitting health care clinics in deeply red states that have banned or heavily restricted the procedure since the Supreme Court’s ruling.
The legislation would prevent federal and state governments from implementing restrictions that aren’t medically necessary.
It would also prevent those governments from distributing medically inaccurate information about abortions, limiting telemedicine for abortions, restricting medication abortion and requiring patients to make medically unnecessary in-person visits.
Governments would be barred from restricting abortions ahead of viability, the threshold the Supreme Court set in the 1992 Planned Parenthood v. Casey case when the court also reaffirmed the nationwide, constitutional right to an abortion. Fetal viability, or the ability to survive outside the womb, usually occurs around 22 to 24 weeks into a pregnancy.
Governments couldn’t set restrictions on abortion after viability 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.”
The House previously approved another version of the Women’s Health Protection Act on a 218 – 211 vote last September. The Senate tried to pass a similar bill, but was unable to get the votes needed to surmount the legislative filibuster following a 49 – 51 procedural vote in May.
Both bills would have protected abortion access throughout the country.
Contraception vote next
The U.S. House votes Friday weren’t the last stemming from the Supreme Court’s decision on abortion.
The chamber is slated to vote next week on a bill that would ensure access to contraception nationwide, in response to concerns the conservative justices may undo other constitutional rights based in the 14th Amendment’s due process clause.
Associate Justice Clarence Thomas wrote in his opinion for the abortion case, Dobbs v. Jackson Women’s Health Organization, that the Supreme Court should reconsider three prior cases that were based on the same legal logic as the constitutional right to an abortion.
Those three separate rulings recognized a constitutional right to determine if and how to use contraception, prevented government interference in consensual adult private sexual relationships and legalized same-sex marriage.
Hoyer said Friday when announcing the vote next week on contraceptive access that “American women deserve to be able to make decisions about their own bodies and their own lives, including whether to become pregnant and have children.”
“That is a basic human right that House Democrats will defend with all our strength,” Hoyer continued.
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