Women’s Health Protection Act: Congress Has a Moral and Legal Obligation to Protect Abortion Access

Editor’s note: On Tuesday, June 8, the Women’s Health Protection Act (WHPA) was reintroduced in Congress—federal legislation that would codify Roe v. Wade into law and establish the legal right to abortion in all 50 states. This is not the first time the bill has been introduced, but this time around does mark the highest number of original co-sponsors ever for the legislation.

Last Wednesday, in front of the Senate Judiciary Committee’s Subcommittee on the Constitution, Sen. Richard Blumenthal (D-Conn.)—a WHPA co-sponsor and committee chair—oversaw a Senate hearing on the historic legislation. Senators heard testimony from abortion advocates, including Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health; an abortion storyteller named Tohan from Texas; and Professor Michele Goodwin, chancellor’s professor at the University of California, Irvine, founder and director the Center for Biotechnology and Global Health Policy and its Reproductive Justice Initiative, and host of the Ms. podcast “On the Issues With Michele Goodwin.”

Goodwin spoke powerfully on the urgency of the WHPA in addressing racial, gender, legal and health disparities. Read her testimony below.

Committee Chairman Durbin, Committee Ranking Member Grassley, Subcommittee Chairman Blumenthal, Subcommittee Ranking Member Cruz, and distinguished members of the Senate Judiciary Committee and Subcommittee on the Constitution, thank you for inviting me to participate in today’s hearing on the Women’s Health Protection Act (WHPA).   

My name is Michele Bratcher Goodwin.  I am a chancellor’s professor at the University of California, Irvine and founding director of the Center for Biotechnology & Global Health Policy.  I write and teach in the areas of constitutional and health law. My scholarship is published in the Harvard Law Review, Yale Law Journal, and Texas Law Review among others and in books, most recently, Policing The Womb: Invisible Women and The Criminalization of Motherhood.   

Today, I am here to speak about the WHPA and preserving Roe.  Preserving Roe is not a lofty academic matter, but one of great urgency.  A woman is 14 times more likely to die in childbirth than by having an abortion. In states most aggressively legislating against abortion rights, the maternal mortality rates are devastatingly high and reflect glaring, grotesque racial disparities. This is a critical aspect of the new Jane Crow. 

In 1851, Sojourner Truth delivered a speech best known as “Ain’t I A Woman?” to a crowded audience. Truth pleaded, “I have borne 13 children, and seen most all sold off to slavery, and when I cried out with my mother’s grief, none but Jesus heard me! And ain’t I a woman?” 

Senators, 170 years later, the relevance of Truth’s plea endures. The ink remains wet on that famous oration. Truth’s speech remains a timeless appeal, because Black women continue to struggle against efforts to deny them reproductive autonomy and independence, including that guaranteed by the Constitution.   

The picture that I paint for you is on a canvas that unravels beyond the reaches of slavery and into the 20th and 21st centuries.  Women’s reproduction has been the euphemistic football of legislative politics.   

Women’s Health Protection Act: An Important Step In Health Care  

The Women’s Health Protection Act deserves your attention and support.  It would “establish federal statutory abortion rights for providers and patients…”  Enacting WHPA could trigger the repeal or striking down harmful laws that infringe on abortion access whose purpose and effect is to make it difficult for pregnant persons to access care. This specifically includes requirements for multiple, medically unnecessary in-person visits, requirements that doctors provide their patients with medically inaccurate information, requirements that providers perform medically unnecessary tests and procedures, and unnecessary building requirements that have the purpose and effect of shutting down clinics that not only provide abortion services, but also contraception, breast cancer screenings and STI testing.   

WHPA creates an enforcement mechanism through public and private rights of action, similar to civil rights and anti-discrimination laws. This mechanism allows the U.S. attorney general, a clinician or patient to challenge violations of WHPA in court. 

Congress has the power to protect pregnant people now. Under Section 5 of the 14th Amendment, Congress has the authority to enact legislation when state laws infringe upon or deny the exercise of constitutionally protected rights. This is the important action Congress took when it enacted the Voting Rights Act of 1965 to protect the right to vote. Congress expressly exercised its Section 5 authority to protect access to abortion services and health care providers’ ability to provide abortion services when it enacted the Freedom of Access to Clinic Entrances Act in 1994. 

Congress Has the Authority and Obligation To Act 

Congress also has authority under the Commerce Clause to protect access to abortion.  Abortion services are, like other health care, a form of commercial and economic activity.    

Enacting WHPA will be a substantial improvement in the wake of unrelenting attacks on reproductive health and rights.  The challenges to reproductive health, rights and justice in the U.S. are longstanding and manifold. Forced and coerced sterilization, lack of sex education in high schools, criminal prosecutions and sanctions against poor pregnant women, and high maternal mortality are part of our landscape and history.   

Reproductive justice requires every individual to have the right to make their own decisions about having children regardless of their circumstances and without interference and discrimination. It is time to enact the Women’s Health Protection Act. By passing this legislation, you will protect millions of Americans from harmful abortion restrictions that infringe on rights, burden health, and trample dignity. 

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Michele Bratcher Goodwin is a prolific thoughtleader on matters of constitutional law and health policy. In addition to Ms. magazine, Dr. Goodwin's commentary can be read in The Atlantic, The New York Times, the Nation, CNN and The L.A. Times, among others. She holds the Linda D. & Timothy J. O'Neill chair in constitutional law and global health policy at Georgetown Law School and serves as the co-faculty director of the O'Neill Institute for National and Global Health Law. She is the executive producer of Ms. Studios.