Pro-abortion legislators in the House of Representatives and the Senate are advocating for legislation called the Women’s Health Protection Act (WHPA).REF Despite claims that it simply codifies Roe v. Wade, the bill mandates an abortion regime that would be far more radical than the status quo.
The WHPA’s stated purpose is to “promote access to abortion” by effectively repealing broadly supported existing pro-life policy and prohibiting the enactment of pro-life policy in the future. It would endanger long-standing state and federal laws that have been put in place over the past 40 years. It would endanger essentially all state-level abortion laws protecting the unborn and women’s health—including from inhumane late-term abortion procedures—as well as existing state and federal laws protecting medical providers’ consciences and religious liberty and various provisions limiting taxpayer funding for abortions. These policies have been enacted by duly elected representatives around the country and represent broadly supported consensus policies.REF Their repeal would reverse decades of emerging bipartisan consensus on abortion and replace that consensus with the Left’s radical policy vision.
Sweeping Scope Beyond Roe v. Wade
Supporters’ claims that the bill would simply “codify Roe v. Wade” are misleading and inaccurate. The bill would effectively repeal existing state laws, expressly prohibit future laws that regulate abortion and the abortion industry, and place at risk long-standing federal policies that reflect more than 40 years of bipartisan consensus. Since 1973, states have enacted more than 1,300 life-affirming policies—more than 500 in the past decade alone.REF These laws have been enacted by policymakers duly elected by their constituents, and some have been litigated all the way to the Supreme Court and deemed constitutional. The WHPA simply ignores numerous long-standing laws protecting critical interests such as “protecting the integrity and ethics of the medical profession” and “regulating the medical profession in order to promote respect for life, including life of the unborn.”REF
The bill prohibits government entities from imposing any limitation or requirement that “expressly, effectively, implicitly, or as implemented singles out” and “impedes access to” abortion. The bill does not define what it means to “single out” abortion. The bill provides narrow exceptions if a requirement “significantly advances the safety of abortion services or the health of patients” and such safety “cannot be advanced by a less restrictive alternative measure.” However, the factors “a court may consider” in deciding whether a requirement “impedes access to abortion” include overly broad examples such as whether the limitation or requirement “interferes” with an abortion provider’s ability to perform an abortion and whether the limitation or requirement is “reasonably likely to directly or indirectly increase the cost of providing…or obtaining abortion services (including costs associated with travel, childcare, or time off work.)”
Through numerous references to “medically comparable procedures,” the bill ignores long-established precedent that abortion is, in the words of the Supreme Court, a “unique act”REF and “inherently different from other medical procedures.”REF Moreover, the bill makes no reference to the second human being directly affected by the abortion procedure: the unborn child. (This is a change from versions of the bill introduced in earlier Congresses, which used the term “fetus” in the definition of abortion.REF)
Threatening Policies that Protect Unborn Children
If enacted, the WHPA would threaten policies that protect unborn children in a variety of ways. The bill would prevent state protections for children from abortion based on their sex, race, or diagnosis of a genetic abnormality such as Down Syndrome—policies that, in the words of Justice Clarence Thomas, “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”REF
It would also prevent states from enacting policies that protect children after they can survive outside the womb—something that more than half of the states currently address. The bill disallows post-viability abortion restrictions if the abortion provider believes that continuing the pregnancy would “pose a risk to the pregnant patient’s life or health.” The term “health” is never defined in the bill and has been considered elsewhere, in courts and in states, to include factors like emotional health, age, and financial health.
The WHPA would disallow widely supported policies that reflect advances in scientific knowledge of fetal development. More than a dozen states have acted to protect women and their unborn children from inhumane late-term abortions performed after 20 weeks, at which point scientific evidence suggests that the baby can feel excruciating pain during an abortion procedure.REF Such a policy has been introduced and voted on repeatedly, though not enacted, in the U.S. Congress in a bill titled the Pain-Capable Unborn Child Protection Act, or “Micah’s Law.”REF
Threatening Policies that Protect Women’s Health and Safety
The WHPA would prevent states from enacting critical informed-consent policies that allow women to make fully informed decisions. From reflection periods to the opportunity for a woman to view the ultrasound image of her unborn child or listen to the sound of the heartbeat, the WHPA would jeopardize a state’s ability to ensure that women have the opportunity—and the time—to receive valuable information that informs the decision as to whether or not to have an abortion.
The WHPA would prevent states from mitigating serious abortion-related health risks that become more pronounced the farther along a woman is in her pregnancy. It would prevent states from adequately regulating abortion facilities unless such requirements are similar to those for a facility where “medically comparable procedures” occur. This vague construction and the fact that abortion is unlike any other medical procedure raise the prospect of a self-regulated abortion industry. It would also prevent states from enacting safety measures regarding chemical abortion—a process that carries a complication rate four times that of surgical abortionREF—such as requiring in-person dispensing of chemical abortion pills and prohibiting telemedicine abortion.REF
Threatening Conscience Rights and Religious Liberty
The WHPA prohibits a “limitation on a health care provider’s ability to provide immediate abortion services when that health care provider believes, based on the good-faith medical judgment of the provider, that delay would pose a risk to the patient’s health” and defines “health care provider” to mean individuals and entities. Because of the law’s vague references to patient “health” and its explicit instruction to courts to “liberally construe” the bill’s provisions, existing state and federal laws that prohibit discrimination based on moral or religious objections to abortion would be under threat.
For more than 40 years, such laws have ensured that individuals and entities such as doctors, nurses, and religiously affiliated hospitals do not have to violate their moral or religious convictions, and the WHPA threatens this fundamental right. It further threatens Americans’ fundamental First Amendment rights by explicitly stating that the Religious Freedom Restoration Act of 1993 will not provide recourse if a policy otherwise runs afoul of the WHPA.
Threatening Policies that Restrict Taxpayer Funding for Elective Abortions
The WHPA says that it does not apply to “insurance or medical assistance coverage of abortion services” but does not define what such insurance or coverage entails. It remains an open question, then, what types of funding restrictions on abortion would survive under the WHPA.
The WHPA has been revised many times since 2013 when it was first introduced and has been addressed in numerous committee hearings. Its sponsors have had ample opportunity to clarify exactly how the WHPA would interact with state and federal policies that disentangle taxpayer dollars from elective abortion, and they have chosen not to do so. This ambiguity, taken in the context of the rest of the bill (like language prohibiting policies that increase the cost of abortions), raises the possibility that the Hyde Amendment and similar policies that prohibit funding for elective abortions in government programs would not survive the WHPA.
If enacted, the Women’s Health Protection Act would threaten hundreds of state and federal pro-life policies that have been enacted by duly elected representatives in response to the wishes of their constituents. Broadly supported consensus policies,REF including restrictions on taxpayer funding for abortions and policies that protect both women and unborn children from inhumane late-term abortion procedures, would be put in jeopardy. Despite claims that it simply codifies Roe v. Wade, the bill mandates an abortion regime that would be far more radical than the status quo.
Americans broadly support policies that the WHPA would disallow. Many Americans across the country also are working to help women who face the reality of an unplanned or challenging pregnancy, believing that women and children deserve better than abortion. Rather than take away the American people’s ability to have a say in pro-life policymaking, Congress should pursue policies that protect innocent unborn human lives.
Melanie Israel is a Policy Analyst in the Richard and Helen DeVos Center for Religion and Civil Society, of the Institute for Family, Community, and Opportunity, at The Heritage Foundation.