Women’s Health Protection Act: Unconstitutional and More Radical Than Roe v. Wade

COMMENTARY Life

Women’s Health Protection Act: Unconstitutional and More Radical Than Roe v. Wade

Feb 28th, 2022 6 min read
COMMENTARY BY
Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Thomas is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies.
The strategy behind the WHPA seeks to hide, censor, and avoid the fact that abortion is designed to kill a human being. encrier / Getty Images

Key Takeaways

The U.S. Senate will next week take up S.1975, the so-called Women’s Health Protection Act (WHPA).

The WHPA would be even more radical than either Roe v. Wade or the bill’s own legislative predecessors.

The Supreme Court’s answer in Roe v. Wade was that human life has almost no value before birth.

The U.S. Senate will next week take up S.1975, the so-called Women’s Health Protection Act (WHPA). Its backers want everyone to believe that it will simply protect by statute the right to abortion that the Supreme Court defined in its Roe v. Wade decision. They know this is a lie, and the rest of the American people need to know it too.

The strategy behind the WHPA seeks to hide, censor, and avoid the fact that abortion is designed to kill a human being. This isn’t the Middle Ages, after all. We all know that human reproduction produces a new, living human being. Everyone reading this, as well as its author, started that way and has been a living human being ever since. The debate, therefore, is not about choice in general but whether this particular choice, killing a human being before birth, should be available.

In Roe v. Wade, the Supreme Court said it should because of the “detriment” that prohibiting abortion “would impose upon the pregnant woman.” That, however, is a policy decision that courts do not have authority to make. The Supreme Court, therefore, said that the 14th Amendment protects a “right to privacy” that “is broad enough” to include abortion. Since the Court made no attempt to actually interpret the 14th Amendment, though, that did not fool anyone, and no constitutional scholar of any ideological stripe even tries to defend it. But that’s where we have been for the past five decades.

Roe v. Wade got the job done, making legislative efforts to protect life before birth all but impossible, a policy more permissive than all but ones in seven other nations. Yet the Court now has before it a case, Dobbs v. Jackson Women’s Health Organization, in which it may finally acknowledge that Roe v. Wade is an indefensible distortion of the Constitution and overrule it. That would once again put state and local governments in primary charge of abortion policy.

>>> Protecting Unborn Children in a Post-Roe World

This is where the WHPA comes in by attempting to prevent those governments from placing any kind of limitation or restriction of any kind on abortion. The bill prohibits any legislature anywhere from enacting eleven specific categories of abortion regulation, as well as any that are “similar” to them. This legislative ban covers anything that is “reasonably likely” to “delay . . . some patients” from getting an abortion, to “indirectly” increase the cost of doing so, or even necessitating a trip to the doctor’s office.

The WHPA’s two most glaring defects are that Congress has no authority to dictate how state and local legislatures may handle abortion and, even if it did, the WHPA is far more radical than even Roe v. Wade itself.

The WHPA refers repeatedly to the “constitutional right to terminate a pregnancy.” Congress does have authority to “enforce, by appropriate legislation, the provisions” of the 14th Amendment. Those provisions, of course, say nothing about privacy or abortion and, if the Supreme Court overrules Roe v. Wade, no one will be able even to pretend otherwise. There will nothing for Congress to enforce.

The WHPA also claims that Congress’s power to regulate interstate commerce allows it to control state and local abortion legislation. The bill’s findings state that “to provide abortion services, health care providers engage in interstate commerce.” That was the constitutional basis for Congress enacting the Partial-Birth Abortion Ban Act in 2003. The WHPA, however, would regulate not abortion or abortion services, but how state legislatures regulate them. That distinction makes all the constitutional difference.

In addition to Congress lacking any constitutional authority to enact it, the WHPA would be even more radical than either Roe v. Wade or the bill’s own legislative predecessors.

Roe v. Wade, for example, recognized that “[t]he pregnant woman cannot be isolated in her privacy.” The “developing young in the human uterus” makes abortion “inherently different” from other privacy rights. In fact, the Court said, abortion may not have a “close relationship” to those other rights at all. The child in the womb, in other words, changes everything.

In Roe, the Supreme Court referred to the unborn “child,” “prenatal life,” “fetus,” “embryo,” and “unborn children.” These were not simply casual or random references. The state, Justice Harry Blackmun wrote, has an “important and legitimate interest” in protecting human beings before birth. Only four years after Roe, the Supreme Court held that the right to abortion “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment” through certain kinds of legislation.

The WHPA repudiates, rather than codifies, that aspect of Roe v. Wade. The bill, in fact, tries mightily to erase, avoid, or deny any suggestion, hint, or whisper that a second human being exists at all. It even drops the definition of “abortion” found in previous versions of the WHPA because that definition referred to “a live birth” (of what?) and a “dead fetus” (that must once have been alive). The WHPA’s proponents apparently believe that abortion focuses too much, even in death, on the unborn child. Instead, the current WHPA refers only to “abortion services” which, it claims, “are essential health care” and, therefore, focus exclusively on the pregnant woman.

Well, not quite. Previous versions of the WHPA use “woman” or “women” dozens of times. The current version of the bill, however, replaces those words with “person” and “people.” Its findings explain that it would “protect all people with the capacity for pregnancy—cisgender women, transgender men, non-binary individuals, those who identify with a different gender, and others.”

The bill repeatedly targets what it calls “abortion-specific restrictions,” prohibiting any regulation or limitation that is not also applied to “medically comparable procedures.” As the Supreme Court recognized in Roe, however, abortion is “inherently different.” The presence, and intentional death, of the unborn child means there are no medically comparable procedures.

The WHPA would prohibit legislation that the Supreme Court has upheld. In Planned Parenthood v. Casey, for example, the Court upheld a parental consent requirement for minors seeking abortion, recognizing the state’s “important and legitimate interest” in the welfare of minors. The WHPA, in contrast, lists “parental involvement laws (notification and consent)” among measures that “complicat[e] access to . . . abortion services.”

The current WPHA reaches even father than the versions introduced in the previous four Congresses. Those versions, for example, defined the “states” subject to Congress’ control as “each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and each territory or possession of the United States.” The current WHPA, however, adds “and any subdivision of any of the foregoing.”

Under the WHPA, prohibiting a state regulation requires nothing more than a “reasonable likelihood” that it might “indirectly” deter “some patients” from getting an abortion. Defending that regulation, however, requires “clear and convincing evidence” that the regulation “significantly advances the safety of abortion services” and that this goal “cannot be advanced by a less restrictive alternative measure or action.” How’s that for heads-the-pregnant-person-wins-tails-the baby-loses?

>>> Dispelling 3 Common Myths About Abortion

The WHPA “applies to the law of the Federal Government, and each State government [including ‘any subdivision’] . . . whether adopted before or after the date of enactment of this Act.” If that means what it says, the WHPA would not only prohibit any legislature, at any level of government, from doing anything that might make abortion less likely in the future, but those legislatures would be required to repeal any such laws or regulations already on the books.

When all is said and done, the WHPA would, retroactively and prospectively, prevent any government, at any level, from “enact[ing] or enforce[ing] any law, rule, regulation, standard, or other provision having the force and effect of law that conflicts” with any WHPA provision. No one with any knowledge of our system of government, let alone senators who have sworn to uphold and defend the Constitution, could think that Congress has such draconian authority.

In a 1983 essay titled “Abortion and the Conscience of the Nation,” President Ronald Reagan wrote that “[w]e cannot diminish the value of one category of human life—the unborn—without diminishing the value of all human life.” The “real question,” he wrote, “is not when human life begins, but, what is the value of human life?” The Supreme Court’s answer in Roe v. Wade was that human life has almost no value before birth. The WHPA scoffs even at that, denying that human life exists at all before birth. Senators will give their answer when they take up the bill next week.

This piece originally appeared in The National Review