Updated Friday, Sept. 24 at 2:20 p.m. PT.
“The Women’s Health Protection Act will take the power to make these deeply personal medical decisions out of governors’ mansions and state legislatures and put it back where it belongs: in the hands of patients and persons they trust.”
—Rep. Lois Frankel (D-Fla.)
On Friday, three weeks after the state of Texas passed the most extreme abortion ban in U.S. history, the House of Representatives passed the Women’s Health Protection Act (WHPA)—federal legislation that would codify Roe v. Wade in law and establish the legal right to abortion in all 50 states under federal law.
First reintroduced on Tuesday, June 8, the WHPA guarantees a pregnant woman’s right to access an abortion and protects the right of abortion providers to deliver these services free from medically unnecessary restrictions that interfere with a patient’s individual choice or the provider-patient relationship.
“We need to trust women to make important decisions about their own reproductive destinies,” said co-sponsor Rep. Lois Frankel (D-Fla.). “The Women’s Health Protection Act will take the power to make these deeply personal medical decisions out of governors’ mansions and state legislatures and put it back where it belongs: in the hands of patients and persons they trust.”
Friday’s vote was 218–211, with Democrat—Rep. Henry Cuellar of Texas—joining all Republicans in opposing the measure. The bill faces an uphill battle in the Senate unless Democrats move to eliminate or reform the filibuster.
“This is about freedom, about freedom of women to have choice, about the size and timing of their families, [which is] not the business of people on the court or members of Congress,” House Speaker Nancy Pelosi (D., Calif.) told reporters on Friday morning before the vote.
U.S. Senators Richard Blumenthal (D-Conn.) and Tammy Baldwin (D-Wis.) introduced the Senate bill with a total of 48 original co-sponsors. Representatives Judy Chu (D-Calif.), Ayanna Pressley (D-Mass.), Veronica Escobar (D-Texas) and Rep. Frankel introduced the House bill in with a total of 176 original co-sponsors. These are the highest numbers of original co-sponsors ever for the bill.
Abortion will always be available to the wealthy and well-connected. For everyone else, there’s the Women’s Health Protection Act. #WHPA guarantees abortion access for all, no matter your background or zip code. #ActForAbortionAccess https://t.co/wwmH9OEZRh— Judy Chu (@RepJudyChu) June 8, 2021
Outrage has rung across the country since the Texas law went into effect on Sept. 1. The law’s vigilante-style system makes it unique from other six-week bans and, for now, immune from judicial action—but also particularly offensive to a large majority of Americans: 81 percent of the country says Texas’s bounty system is wrong, according to a Monmouth University poll from Sep. 20. Even still, several states are eyeing copycat bans, and experts anticipate more to follow.
“Right now in states across this country, Roe v. Wade is under attack and millions of women are at risk of losing the freedom to make their own personal health decisions,” said Baldwin. “It is past time to stand up to these extreme threats to women’s constitutionally protected reproductive rights, which is why I’m championing the Women’s Health Protection Act. Every woman, regardless of where she lives, deserves the freedom to make her own, personal decisions about her health care, her family and her body.”
The WHPA explicitly protects against some of the most common and burdensome restrictions enacted by anti-abortion lawmakers, including previability bans, mandatory medical procedures, medically inaccurate counseling, telemedicine abortion restrictions, targeted regulation of abortion providers (TRAP laws), and forcing medically unnecessary extra trips to clinics. WHPA would also block restrictions that are similar to those explicitly barred by the bill or that operate similarly by singling out abortion care with restrictions that impede access.
To guide courts, the law lays out several factors to consider when assessing the legality of a restriction, including whether it is reasonably likely to cause delays in accessing care or result in a decrease in availability of abortion services in the state or region. The bill also requires courts to take into account the cumulative impact of abortion restrictions.
“This bill is bold, responsive and timely legislation that would codify a person’s right to choose, free from government interference, and affirm abortion care as the fundamental human right that it is,” said Pressley. “I am grateful to my colleagues and our advocates for their partnership on this bill, and look forward to continuing to organize, mobilize and legislate until this bill is passed and the ink dries on President Biden’s signature.”
Responding to an Onslaught of Attacks on Abortion Rights
Advocates argue the WHPA is more necessary than ever because of an unprecedented surge in abortion restrictions in 2021. The Guttmacher Institute reports that lawmakers across 47 states introduced 561 abortion restrictions since January, including 165 abortion bans (as of June 7, 2021). A staggering 83 of those restrictions have been enacted across 16 states, including 10 bans.
“A staggering 1,313 restrictions have been enacted by U.S. states since Roe v. Wade was decided in 1973,” said Elizabeth Nash, Guttmacher Institute’s principal policy associate on state issues. “It’s an astounding number, and while many of these restrictions were blocked in court, most of them are in effect today.”
As a result of these restrictions, abortion has become almost impossible to access in much of the South and Midwest, even though Roe v. Wade is still the law.
“For decades, extremist lawmakers have worked relentlessly to turn back the clock and restrict women’s health and reproductive rights,” said Escobar. “In Texas, Republicans recently passed one of the most draconian laws in the country to ban abortions as early as six weeks—before most women even know they are pregnant, and without making any exceptions for victims of rape or incest. We must urgently pass the Women’s Health Protection Act to preserve women’s access to safe and legal abortions everywhere.”
Advocates also point to the U.S. Supreme Court’s May 17 decision to hear a direct challenge to Roe v. Wade in the case of Dobbs v. Jackson Women’s Health Organization, involving a Mississippi 15-week abortion ban. In that case, the court has said it will decide the question of whether all previability prohibitions on abortion are unconstitutional.
“This is part of a deliberate strategy by anti-abortion extremists to use state laws and the courts to slowly chip away at abortion access, with nearly 500 restrictive laws introduced in states since just 2011,” said Chu. “That is why we need the Women’s Health Protection Act to ensure that no matter where you live, what your background is, or what your zip code, you have the same rights to make decisions about your own body as anyone else.”
If the court reverses Roe, states could be allowed to ban abortion outright, which many would do. This is the first abortion ban case that the court has agreed to hear since Roe.
“With the Supreme Court set to consider a direct attack on Roe and as emboldened and extremist lawmakers viciously attack women’s reproductive rights in statehouses across the nation, the Women’s Health Protection Act has never been more urgent or more necessary,” Blumenthal said. “These demagogic and draconian laws hurt women and families as they make personal and difficult medical decisions. This issue is about more than health care, it’s about human rights—all our rights.”
Majority of Voters Support Abortion Rights
Advocates emphasize that a large majority of American voters support abortion rights. A recent Center for Reproductive Rights poll conducted by Hart Research shows 61 percent of U.S. voters support the WHPA. Strong majorities of both Democrats and Independents and nearly 40 percent of Republicans support a new federal law like WHPA that would protect abortion rights and access across the country. Voters are also strongly supportive of the constitutional right to abortion, with nearly seven in 10 voters expressing support for upholding Roe v. Wade, including 91 percent of Democrats, 71 percent of independents and 43 percent of Republicans.
“This poll sends a clear message to Congress: The majority of voters want abortion protected under federal law,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “We cannot wait any longer. Even now, with constitutional protections in place, state legislators have made it impossible to access abortion in the South and Midwest. This bill—WHPA—would protect against the hundreds of state restrictions and bans that have pushed abortion out of reach. This is an issue of equal access, everywhere.”
Voters of color are particularly supportive of the WHPA, with 79 percent of Black voters, 67 percent of Hispanic voters, and 67 percent of Asian American and Pacific Islander (AAPI) voters supporting the act. In addition, 77 percent of Hispanic women and 75 percent of AAPI women support the Act.
Young people are also strongly supportive of creating a national law to support abortion rights, with 66 percent of voters under age 30—including majorities across gender, race, and ethnicity—support passing WHPA and even higher levels of support among younger Black (78 percent) and Hispanic voters (70 percent).
“Abortion access is a racial and economic justice issue,” said Danielle Hurd-Wilson, interim deputy director of field and programs at URGE: Unite for Reproductive and Gender Equity. “The legacy of restrictions on reproductive health care has perpetuated white supremacy and anti-Black racism. Restrictions on abortion compound harm for members of communities that have historically experienced barriers to health care—namely people of color, queer and trans folks, and those working to make ends meet.”
“The Women’s Health Protection Act would help cut the tangled web of restrictions that anti-abortion politicians have enacted to shame and stigmatize our decisions and deny us timely health care,” said Hurd-Wilson. “The future I want to see is one where anyone can get an abortion with dignity and without barriers.”