Wednesday, a group of legislators introduced a different kind of abortion bill into the U.S. Senate. The Women’s Health Protection Act would outlaw all regulations on abortion that “are more burdensome than those restrictions imposed on medically comparable procedures, … do not significantly advance women’s health or the safety of abortion services, and … make abortion services more difficult to access.” In layman’s terms, it would make all of the nearly 200 laws impeding abortion rights that have been enacted at the state level since 2011 illegal. “Enough is enough,” said Representative Judy Chu at a press conference on Capitol Hill. “We’ve been playing defense far too long. It’s time to stop playing Whac-A-Mole in each state. We need to provide a national response in fighting this.”
One of the bill’s biggest selling points is that it’s federal, seeking to impose a standard for abortion access so that women’s health will not be determined “by their zip code,” as Senator Richard Blumenthal, who introduced the bill joined by Barbara Boxer and Tammy Baldwin, and the House co-sponsors said again and again. But its short-term outlook in the polarized 113th Congress is somewhat dreary; the bill has 29 co-sponsors in the Senate and 53 in the House, none Republican. Its best hope could be to spawn replicas at the state level, where anti-abortion measures have had their exponential success. Many of Republicans’ bogus claims about abortion have grown out of their hours grandstanding on state capitol floors—for example, Texas state representative Michael Burgess’s conviction that fetuses can feel pain at 15 weeks because they can masturbate by then (they can't), and his co-sponsor Jodie Laubenberg’s argument that rape exceptions in abortion laws are unnecessary because rape kits “clean people out” (they don't). If Democrats in blue states give themselves a platform, they might be able to spread their own ideas about abortion—and some of them, hopefully, would even be true.
When I asked Blumenthal if he thought his bill could have a second life at the state level, he said he codified the right to abortion in Connecticut’s constitution as a state official. “The fear then was that the court might overrule” Roe v. Wade, he said. Passing this new bill at the state level would stave off other dangers—from the baseless specifications for how abortion clinics are built that have no purpose other than to force them to close; to the laws that give Republican legislatures control over the dosages for abortion medication, even when their demands are out of sync with doctors’ judgment; to the accusatory sonograms and waiting periods that make abortion a longer, costlier, process and amount to a psychological assault on women.
Since Roe, pro-abortion rights politicians have been on the defensive as conservatives take one swing after another to topple the right the court erected. They only air their arguments in swan dive-style apologia (Texas State Senator Wendy Davis’s 12-hour filibuster is the height of the genre). Their only victories are preventions of dire failure. The votes that define them are principled, often pyrrhic stands against laws whose success is in many cases inevitable. “Look, I’ve taken a lot of tough votes,” Senator Mary Landrieu, Democrat of Louisiana, told The New York Times when a reporter asked if a “no” vote on a proposed 20-week abortion ban would hurt her chances of reelection. “That’s what I’m here for, to take votes. And if we have to take it, we take it.” When an anti-abortion bill is under debate, the worst case scenario can be the closure of every last clinic in the state; in this case the worst case scenario is just the status quo. When the Women’s Health Protection Act comes up on the floor, Democrats will at least have a chance to argue on the offensive, without their constituents’ health on the line.