(This article has been updated to reflect Friday afternoon’s passage of H.R. 3755 in the House.)
The Biden administration announced this week that it “strongly supports” a federal bill passed Friday in the House of Representatives that seeks to codify abortion rights nationwide while overriding abortion laws in the states.
Congressional Democrats, desperate to counter a new Texas law that makes abortion illegal once a fetal heartbeat is detected, generally around six weeks, passed H.R. 3755 on Friday, 218-211, overwhelmingly along party lines. The bill has been dubbed the Women’s Health Protection Act by its proponents.
Monday’s announcement of support for the measure by Biden’s Office of Management and Budget places the president, who is Roman Catholic, further at odds with his church and with pro-life Christians. Biden has insisted he is personally against abortion despite strident abortion rights positions.
The Biden administration has sued the state of Texas on grounds that its law is unconstitutional, with an Oct. 1 hearing set. The Texas law is different from other states’ heartbeat bills in that it can only be enforced by private citizens utilizing legal means rather than the state bringing charges against violators.
Calling the Texas law “extreme,” the White House seized on an opportunity to paint the bill as an impairment to minorities and poor women seeking abortions.
“In the wake of Texas’ unprecedented attack,” the White House said, “it has never been more important to codify this constitutional right and to strengthen health care access for all women, regardless of where they live.”
The text of the bill also includes race in its rationale for the measure, apparently seeking to position abortion rights at least partly as a racial justice issue.
“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.”
Meanwhile, pro-lifers in the House were sounding a different tone a day before the scheduled vote.
“The dark skies over the Capitol this morning seem appropriate in light of the darkness that is being advanced inside,” tweeted Rep. Mike Johnson (R-Louisiana). “When the Democrats force a vote tomorrow on their Abortion on Demand Until Birth Act (HR 3755), they will go on record SUPPORTING barbarism & brutality.”
Calling H.R. 3755 “horrifying,” Congressman Tom Emmer (R-Minnesota) tweeted: “It would unconstitutionally override laws at the federal and state level to allow abortion at any time, and for any reason, UNTIL BIRTH.
“This bill is a disgusting attempt to silence the American people, and I strongly oppose it.”
If passed into law, H.R. 3755 would nullify limits and requirements on abortion in the states. Statutes requiring informed consent regarding the abortion procedure; requirements that pregnant women be offered an opportunity to see a sonogram of their unborn child before an abortion; and laws requiring waiting periods, would be superseded by federal law.
Funding measures implemented during Republican administrations, such as the Hyde Amendment barring federal funds for abortion procedures, and the Mexico City Policy banning government funding of international abortions, would also be nullified.
According to Bloomberg Government, 214 of the 220 Democrats in the House co-sponsored H.R. 3755. The Senate companion bill, S. 1975, has the support of 48 of the 50 Democrats, with Sens. Joe Manchin (D-West Virginia) and Bob Casey (D-Pennsylvania) the only Democratic senators opposed. The measure has no Republican supporters in either chamber—indicative of the sharp ideological divide over abortion in the two parties.
The bill stands little chance of Senate passage, especially with Manchin’s stated opposition to ending the filibuster. But the Democratic Party along with abortion advocates are pushing hard to sway public opinion in case the Senate gains Democratic seats in 2022.
Rena M. Lindevaldsen, law professor at the Liberty University School of Law, says the Women’s Health Protection Act “stands on shaky constitutional grounds given the Supreme Court’s recent decision to hear a challenge to Mississippi’s law restricting abortion after 15 weeks.”
Lindevaldsen told Decision that if the Supreme Court were to merely overturn Roe, returning the abortion issue to the states, then “arguably Congress would continue to have authority to regulate the economic activity of abortion,” giving the federal government some power in how states govern the issue under the Constitution’s Commerce Clause. When the Supreme Court upheld the 2003 Partial Birth Abortion Ban Act, it noted that Congress had used its Commerce Clause powers to pass the law, Lindevaldsen said.
“But,” Lindevaldsen said, “if the Supreme Court were to declare that the unborn baby is a life protected by the 14th Amendment, thereby prohibiting abortions altogether, Congress would lose its Commerce Clause powers to protect a right to abortion since abortion would be illegal.”
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