US Senate to vote on pro-abortion Women’s Health Protection Act

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The U.S. Senate is expected to vote next week on a piece of legislation that one pro-life group is calling the “Abortion Until Birth Act.” 

The Women’s Health Protection Act (WHPA) would “effectively enshrine an unlimited abortion ‘right’ in federal law,” Marjorie Dannenfelser, the president of Susan B. Anthony List (SBA List), said Feb. 18.

Her comments came after Senate Majority Leader Chuck Schumer (D-NY) cleared the way for the upcoming vote, scheduled for Feb. 28. The Biden administration has repeatedly expressed support for the bill, which would override states’ pro-life laws and remove restrictions on abortion up to the point of birth in some cases.

While the act is not expected to pass, the vote itself is historic. 

Nancy Northup, who heads the Center for Reproductive Rights, recognized the moment Feb. 17 as “the first time the Senate votes on standalone legislation to enshrine the right to abortion in federal law.”

The WHPA would prohibit abortion restrictions or bans “that are more burdensome than those restrictions imposed on medically comparable procedures, do not significantly advance reproductive health or the safety of abortion services, and make abortion services more difficult to access.”

The act’s text lists a series of specific restrictions it would do away with, on everything from limitations on telemedicine to restrictions around viability, which the act defines as the point when a fetus can survive outside the womb — determined by “the good-faith medical judgment of the treating health care provider.”

The WHPA would forbid any kind of limit on abortion before fetal viability, including “a prohibition or restriction on a particular abortion procedure.” After viability, the WHPA would outlaw limits on abortion “when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”

National pro-life groups, such as SBA List, have expressed concern over this section because the Supreme Court, in Doe v. Bolton, broadly defined what “may relate to health,” including “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.”

SBA List warned that the WHPA would “nullify pro-life laws in states across the country, including late-term abortion limits when unborn children can feel pain, waiting periods, informed consent laws, antidiscrimination laws, and more.”

Last September, the House passed the WHPA in a vote that fell along party lines, with one Democrat, Rep. Henry Cuellar of Texas, joining Republicans to vote against it.

The Senate’s vote comes as the Supreme Court prepares to issue a ruling later this year in Dobbs v. Jackson Women’s Health Organization, a case that directly challenges Roe v. Wade, the 1973 case the legalized abortion nationwide. The case involving a 2018 Mississippi law centers on the question of “Whether all pre-viability prohibitions on elective abortions are unconstitutional,” or whether states can ban abortion before a fetus can survive outside the womb, which the court previously determined to be 24 to 28 weeks into pregnancy.

If the Supreme Court does not uphold Roe when it decides Dobbs, abortion could be left up to individual states. The WHPA threatens these state laws.

As Northrup put it, abortion supporters “are counting on the Senate to do what the Supreme Court will not.” Others are also placing pressure on the executive branch.

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