What just happened?
Fearing that the Supreme Court will overturn Roe v. Wade sometime this summer, Senate Democrats forced a vote on Wednesday to advance a bill that would enshrine abortion rights into federal law. The pro-abortion legislation, known as the Women’s Health Protection Act, passed the House last September by a vote of 218-211, largely along party lines.
The legislation failed in the Senate with a vote of 49-51 (all Republicans and Democrat Joe Manchin voted against it), but it reveals how Democrats plan to fight the next phase in the battle over abortion.
What is the Woman’s Health Protection Act?
The stated purpose of the Women’s Health Protection Act (WHPA) is “to protect a person’s ability to determine whether to continue or end a pregnancy, and to protect a health care provider’s ability to provide abortion services.”
The act establishes a statutory right to provide or obtain an abortion by prohibiting any restrictions “that are more burdensome than those restrictions imposed on medically comparable procedures, do not significantly advance reproductive health or the safety of abortion services, and make abortion services more difficult to access.”
The Department of Justice, abortion providers, and anyone claiming to be harmed by restrictions made unlawful under the act could go to court to protect access to abortion.
How would this legislation affect abortion if Roe v. Wade is overturned?
The intention of this legislation is not only to ensure that abortion would be legal in all 50 states if Roe is overturned, but to remove the hundreds of restrictions currently placed on abortion at the state level.
How does the legislation justify overriding the authority of states?
The legislation argues that abortion restrictions “substantially affect interstate commerce” since Congress, under of the U.S. Constitution’s Commerce Clause, is allowed to regulate commerce, traffic, transportation, and exchange between states.
The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Although in the past interstate commerce has been narrowly interpreted in judicial decisions, more recent decisions have interpreted it more broadly and have allowed Congress to regulate internal or local activities that affect interstate commerce.
What is ‘reproductive justice’?
The legislation identifies reproductive justice as a “human right” in which “all people, regardless of actual or perceived race, color, national origin, immigration status, sex (including gender identity, sex stereotyping, or sexual orientation), age, or disability status have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination.”
Reproductive justice, according to this legislation, requires that all people “have the right to make their own decisions about having children regardless of their circumstances and without interference and discrimination.”
How does the legislation connect abortion and racism?
The legislation attempts to portray opposition to abortion as promoting racism and oppression. As the legislation’s text states:
Reproductive justice seeks to address restrictions on reproductive health, including abortion, that perpetuate systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism. This violent legacy has manifested in policies including enslavement, rape, and experimentation on Black women; forced sterilizations; medical experimentation on low-income women’s reproductive systems; and the forcible removal of Indigenous children. Access to equitable reproductive health care, including abortion services, has always been deficient in the United States for Black, Indigenous, and other People of Color (BIPOC) and their families.
How does the legislation address transgenderism?
The legislation shows how difficult it is becoming for Congress to claim both that biology doesn’t define a person’s gender identity and that biology is a distinctive aspect about a person and worthy of protection. The legislation says “abortion-specific restrictions are a tool of gender oppression, as they target health care services that are used primarily by women.”
But then it adds: “The terms ‘woman’ and ‘women’ are used in this bill to reflect the identity of the majority of people targeted and affected by restrictions on abortion services, and to address squarely the targeted restrictions on abortion, which are rooted in misogyny. However, access to abortion services is critical to the health of every person capable of becoming pregnant.” It’s unclear how misogyny—“prejudice against women”—applies to persons who claim they are not women.
Why should Christians be concerned about this legislation?
The legislation provides a roadmap for how abortion advocates and the Democratic Party plan to federalize the issue if the Supreme Court overturns Roe.
Democrats appear to believe that interstate commerce will be the justification that allows them to prevent any restrictions imposed by states.
The Tenth Amendment of the U.S. Constitution states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” However, since President Franklin D. Roosevelt’s New Deal legislation, the “commerce clause” has trumped the Tenth Amendment, allowing the federal government to take almost any powers it wants from the States and the people. The legal focus of pro-life advocates may soon need to be turned toward rolling back the overuse of the commerce clause to keep regulatory power over abortion back at the state level.
But the legislation also shows the cultural framing that Democrats intend to take. They make it clear that they will be portraying the pro-life movement as promoting anti-black racism and white supremacy, even though many minorities oppose abortion. For instance, a Gallup poll taken last year finds that fewer than half (46%) of Black Americans believe abortion is morally acceptable and only about one -in-three (32%) share the Democratic party’s view that it should be legal under any circumstance.
Since true justice requires protecting the innocent, Christians across the political spectrum and of all races and colors should push back against this strategy to portray attempts to protect the unborn as hateful, oppressive, and racist.
The Gospel Coalition