Author Archives: Sarah Fontenot

Can Congress Restore or Defeat Abortion Rights?

Tomorrow will mark 15 weeks since the U.S. Supreme Court released its 6-3 decision in Dobbs v. Jackson Women’s Health Organization, which abolished abortion rights established by Roe v. Wade in 1973. [Dobbs Opinion] [Roe Opinion]

Thirteen states had Trigger Laws that immediately canceled abortion rights upon the overturning of Roe v. Wade. Since Dobbs, other states established their law on abortion through public referendums (ex: Kansas), state legislation (ex: Indiana), or State Supreme Court challenges (ex: Idaho).

State-by-State decision-making is creating a patchwork of abortion laws. The details of these laws differ on many issues, and that variation will increase as state courts and legislatures continue to establish their allowances and restrictions. (Go here for the Guttmacher Institute’s interactive map of laws as of October 2nd; Kaiser Family Foundation also has an interactive map and details of every state law as of September 26th on their “Abortion in the US Dashboard” here.)

As America becomes a quilt of legal inconsistency, many ask, “Wouldn’t it be easier if there was just one law?”

Federal legislation appeals to both abortion rights advocates and opponents. Is it possible Congress could “fix this?” One way or another?

Not really. Want to know why?

Democrats Want a National Abortion Law

Under Nancy Pelosi’s leadership, the House of Representatives has been active on this issue, starting last June (yes, before the Dobbs opinion). The Women’s Health Protection Act of 2021 would have eliminated all state laws prohibiting abortion (immediately and into the future) by creating a federal right to terminate a pregnancy anytime up to the moment of birth. It passed on an (essentially) party-line vote, 218 to 211. [source]

In February, The Women’s Health Protection Act of 2021 died in the Senate.

The House resurrected the national abortion legislation issue after the Dobbs decision, passing two bills in July. The Women’s Health Protection Act of 2022 “prohibits governmental restrictions on the provision of, and access to, abortion services.” [go here to read the Bill]  The Ensuring Access to Abortion Act  “prohibits anyone acting under state law from interfering with a person’s ability to access out-of-state abortion services” [here]. For more on these two House Bills, see ABC News and the New York Times.

The Senate again failed to advance these national abortion rights bills in May (the vote was 51 to 49, with Senator Joe Manchin joining a unanimous Republic vote in opposition).

However, the Senate is not always a graveyard for national abortion rights legislation. In August, Democratic Senators Tim Kaine (Va.) and Kyrsten Sinema (Ariz.) and Republican Senators Susan Collins (Maine) and Lisa Murkowski (Alaska) announced their bipartisan Reproductive Freedom for All Act [here], which protects abortion rights up to viability, as well as the right to access contraception. This Senate Bipartisan effort is, however, dead on arrivalIt will not withstand a filibuster.

Some Republicans Are Fighting for A Congressional Abortion Ban

Well, “some” being Lindsey Graham. His “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act” [text here], cosigned by Senators Steve Daines of Montana and Marco Rubio of Florida, creates a country-wide prohibition on abortions after 15 weeks, with exceptions for rape, incest, and when the mother’s life is in danger. (Senator Graham’s Bill leaves in place state laws that are more restrictive). A companion Bill submitted to the House of Representatives by Chris Smith (R, N.J.) has multiple co-sponsors.

Senator Graham’s law has “stunned” and “baffled” the remainder of the GOP, as the focus of the Republican party in the midterm elections is on other issues. As for abortion, as confirmed by Senate Minority Leader Mitch McConnell, “most GOP Senators prefer having the issue dealt with by the states, rather than at the federal level.” [quote]

Even if Senator Graham can grow support for his law (a possibility given favorable polling – one poll revealing 70% approval among Republican voters), he would face the same Filibuster hurdle as Democrats in creating federal abortion legislation.

Does Any of This Make Any Difference?

No!

Abortion falls under health care, and any time Congress starts legislating in this arena, there are significant jurisdictional and Constitutional problems. If you want to know why I refer you to Fontenotes No 111 and Fontenotes No 91.

Let’s Make This Easy

All you really need is a “back of the envelope” analysis to see all this Congressional action is nonsense! (at least until January 3, 2025).

a. Scenario one: Democrats Get Their Law

Pretend Democrats can get their Women’s Health Protection Act through the Senate (a stretch already, even more so when Republicans are likely to take over the House in 5 weeks).

President Biden would sign it. That’s a given.

Immediately it would be challenged in court and suspended (“stayed”) as it makes its way up through the Federal court system to the U.S. Supreme Court, which would then strike down the law.

Do you doubt that? Read the Dobbs Opinion [here]. You can skip to the last page:

We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives. [emphasis added]

Bottom line? As long as conservatives hold a 6-3 majority on the Court, any Federal protections for abortion rights are a waste of time.

b. Scenario Two: Lindsey Graham Gets His Bill

Perhaps the GOP will fall behind Senator Graham’s national 15-week abortion ban after the midterm elections. Let’s pretend they will.

President Biden will veto it.

No projections give Republicans the necessary 2/3 of the votes in both the Senate and the House of Representatives to override that.

Bottom line? While a Democrat is in the White House, a Republican Federal Abortion ban is DOA.

c. Let’s Boil This Down in An Easy Visual

*Why Could Things Change After January 3, 2025?

That is the first day of work for the new Congress with a new President (or a second term for President Biden). Only a complete change in Washington will allow for anything to change our current patchwork state-by-state approach to abortion.

Why Is Congress Wasting Our Time?

Why are Democrats spending time (and your tax dollars) speaking, arguing, and voting on abortion legislation?

To get your vote.

The party has made this clear; “Senate Majority Leader Charles E. Schumer (N.Y.) and other Democrats have acknowledged that the move was about mobilizing voters, not passing legislation in a Congress where Democrats hold majorities but do not have the votes to defeat Republican filibusters or change the Senate rules to eliminate them.” [quote]

That Filibuster excuse is also a red herring because even without the Filibuster, no federal law reinstating the rights taken away by the overturning of Roe v. Wade will make it past the U.S. Supreme Court. Not for a very long time.

In the meantime, Republicans are avoiding the abortion question as much as possible, also to garner more votes. Arguably, that’s a waste of your representation as well.

What Can Voters Do?

Many Americans, especially liberals, have pinned their hopes on Congress.
It’s a dead end, and my preference is to stop encouraging Democrats to engage in political theater (similar to the 100 resolutions brought forward by Republicans to abolish “Obamacare” between 2010 and 2017, when there was no hope of success).

Put your efforts, energy, and resources into your state elections. On the issue of abortion, it’s the only vote that matters.  And your vote matters, a lot.


(I can hear some of you arguing that the House of Representatives is the “People’s House,” and a vote there is by their elected representatives. I’m basing my projections in this Fontenotes on the extensive time Justice Alito spent on state rights and the history of abortion among the states [see Want to Know More]. I’m confident the Court didn’t override Roe & Casey to see Roe codified only months after; I’m giving the Court the benefit of the doubt that it would be equally opposed to a national ban. Either way, I’m taking the Court’s words as my guide to predicting what they would do if the Democrats succeed in passing federal abortion rights.)

 

Want to Know More?

1. In the Dobbs decision, Justice Samuel Alito recognized that the U.S. Supreme Court must “exercise the utmost care whenever we are asked to break new ground lest abortion rights be subtly transformed into the policy preferences of the Members of this Court.” [emphasis added]

To establish if reproductive choice is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty,” he extensively reviewed the history of abortion, both in England and the American colonies.

However, the history Justice Alito provides does not correspond with the account in other resources. For example, Abortion in Early America (1979), published by the National Library of Medicine, shows that “abortion was frequently practiced in North America during the period from 1600 to 1900. Many tribal societies knew how to induce abortions… During the colonial period, the legality of abortion varied from colony to colony and reflected the attitude of the European country which controlled the specific colony. In the British colonies abortions were legal if they were performed prior to quickening.” [emphasis added] Read that paper here.

2. What’s “quickening?”

It’s the old term for when a woman first feels her baby move in her womb (which usually occurs between the 16th and 18th week of pregnancy.)

As you will see in both Justice Alito’s history and the paper cited above, quickening was the traditional line between when terminating a pregnancy was a personal decision and when the law and government became involved.

The irony of quickening in the context of the Dobbs decision and its aftermath is that the Mississippi law the case involves would prohibit abortions* at 15 weeks. Yes, basically, at the time of “quickening.”

*The Mississippi law had some exceptions, but not for cases of rape or incest. [source]