Congressional Democrats are eyeing legislation that would affirm the right to abortion and counter new pro-life laws in a host of states, in a move that could expose divisions within the Republican Party over how far some of the states have gone.
Several presidential candidates have called for action, and liberal pressure groups say it’s time the House, controlled by Democrats, takes the fight to the halls of Capitol Hill.
Democratic leaders have not made any commitments, but analysts say the opportunity to make Republicans uncomfortable may be too tempting to pass up.
“I’m sure there’s a desire among Democratic leadership to put a resolution, at a minimum, on the floor,” said Matthew Dallek, a professor at George Washington University’s Graduate School of Political Management. “Republicans are now in a position where they’re now running away from the bill, for example, passed in Alabama. I think they’re in a much more precarious position politically.”
Alabama’s governor this month signed what was the most restrictive law in the country, outlawing abortions in all cases save for risk to the life of the mother or danger of serious adverse health consequences.
A number of other Republican-led states have enacted or are considering laws banning abortions after a fetal heartbeat can be detected, which can mean six weeks into a pregnancy, or when a fetus can feel pain, usually around 20 weeks.
Alabama’s law in particular challenges Republican orthodoxy at the national level, which traditionally has called for abortion to be allowed in cases of rape or incest. House Majority Leader Kevin McCarthy, California Republican, said last week that he didn’t support the extent of Alabama’s law, and President Trump broke with the state this weekend.
Some of those pushing state laws say their goal is to create cases to challenge the 1973 Roe v. Wade decision, which made abortion a constitutional right nationwide. State Rep. Terri Collins, sponsor of the Alabama bill, said she resisted adding the rape and incest exceptions because she wanted a “clean” bill to challenge Roe and would vote for such exceptions should Roe be overturned and the states regain the right to make abortion laws.
High-profile Democrats say Congress should step in now and write legislation to protect abortion rights in case the Supreme Court revisits and reverses the 1973 decision.
“The overwhelming majority of Americans have no desire to return to the world before Roe v. Wade. And so the time to act is now,” said Sen. Elizabeth Warren of Massachusetts, one of several 2020 Democratic presidential hopefuls supporting such action.
She is unlikely to gain traction in the Senate, where Republicans have control.
Action is more likely in the House, where Democrats hold the reins.
“House Democrats strongly oppose efforts by Republican state legislatures to severely restrict women’s access to health care,” an aide for Democratic leadership told The Washington Times. “We will pursue regular order and allow the committees to examine various proposals before legislation is scheduled for floor consideration.”
Liberal activists say they want more than words.
“To defeat Trump and extreme Republicans in 2020, Democrats need to draw clear contrasts — and that includes showing women that our side will fight for their bodily autonomy,” Marissa Barrow, spokeswoman for the Progressive Change Campaign Committee, said in a statement to The Times. “Candidates like Elizabeth Warren have made bold proposals that codify Roe v. Wade, and it would be energizing to see the House schedule a vote on this proposal.”
Michaela Lovegood, a field director and leader of the political healers and gender justice projects for People’s Action, said in a statement to The Times that “in the U.S. Congress we expect all representatives — Democrat and Republican — to pass proactive measures like the EACH Woman Act that would begin to ensure safe and reliable access to abortion regardless of race, class, or geographic region.”
Mr. Dallek wondered how much voters care. He said Democrats didn’t campaign heavily on abortion before an electoral wave last year gave them control of the House — though he added that they do have an edge on the issue over the Republican Party.
Jessica Waters, the dean for undergraduate education at American University, who studies reproductive rights law, said focusing on the issue is a clear benefit for Democrats.
“It is more of a rallying cry more than something that is realistically going to happen, given that the GOP continues to control the Senate,” she said. “I think this is a way for Democrats to mobilize their base. I think this is an opportunity for Democrats to highlight the importance of the issue to likely voters.”
Most of the legislative action on abortion this year has come from Republicans.
In the House, Republican leaders have tried to force votes to condemn legislation in Democrat-led states that have explicitly legalized abortion throughout pregnancy. Republicans want protections for babies born after botched abortions.
Democrats have blocked demands for a vote on more than 45 occasions.
With action on Capitol Hill uncertain, analysts say, the fate of state laws are more likely to be determined in the courts.
A federal judge in Mississippi will hear arguments Tuesday regarding the state’s six-week “heartbeat bill.”
In Virginia, a two-week trial began this week to test four of the state’s restrictions on abortion, including requirements that a physician conduct the abortion and that second-trimester procedures be performed at hospitals, as well as licensing requirements and a mandated 24-hour waiting period.
Rep. Pramila Jayapal, Washington Democrat, one of the top liberals on Capitol Hill and a member of the Pro-Choice Caucus, said last week that she hopes the courts sort out matters so Congress doesn’t need to.
“I don’t want to undermine the Supreme Court’s decision on this,” Ms. Jayapal told reporters Friday. “I don’t know why we have to reaffirm something that’s already been reaffirmed by the Supreme Court.”
Maya Manian, a reproductive law professor at the University of San Francisco, agreed with Ms. Jayapal. Unless the Supreme Court overturns any of the landmark abortion cases, she said, there is not much Congress needs to do.
“Right now, women have a constitutional right to access abortion,” she said. “Now if at some point, with its current five-justice majority [on the high court], decides to reverse that long-standing line of precedent to completely reverse Roe and [Planned Parenthood v.] Casey or severely gut it … then maybe there would be reason for Congress to step in.”
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