Photo by Gayatri Malhotra on Unsplash
On July 15, the House passed two bills, H.R.8296 and H.R.8297, in an effort to shore up abortion access across the country in the wake of the landmark Supreme Court reversal of Roe v. Wade. H.R.8296, or “Women’s Health Protection Act of 2022,” passed the House with a vote of 219–210, nearly completely along party lines. (The only representative to vote opposite their party is Henry Cuellar (D-TX-28), who voted against H.R.8296 but supported H.R.8297. He is one of the only federal Democrats who opposes abortion.) H.R.8297, or “Ensuring Women’s Right to Reproductive Freedom Act,” was only slightly more bipartisan; every Democrat voted in favor, and three Republicans joined.
The first resolution would restore the nationwide access to abortion guaranteed under Roe, a move basically destined to die in the 50–50 Senate. The second resolution would prevent the criminalization of traveling to another state to obtain an abortion.
The only Republican Senators that somewhat support abortion rights are Sens. Lisa Murkowski and Susan Collins, and they have stated that they believe these bills are too broad, dooming the chance for a bipartisan passage of any bill, though its passage at all is highly unlikely.
After a Dobbs v. Jackson Women’s Health Organization draft opinion leaked in May, it immediately became clear that the precedents set by Roe and the subsequent Planned Parenthood v. Casey in 1992 were both at serious risk. These fears came to fruition with Dobbs, but the anti-choice movement did not suddenly materialize with the leak.
The anti-choice push started in the immediate aftermath of the Roe decision and carried through the Trump presidency. With three new Supreme Court Justices, the Court had a conservative supermajority ready to undue nearly half a century of precedent.
The pro-choice movement, after achieving victories in Roe and its updated version in Casey, did not materialize to the same extent as the anti-choice movement.
Despite Democrats having a trifecta (controlling both houses of Congress and the Presidency) five times after Roe, there was never a significant push to cement the right to an abortion in federal law. A hot button issue such as abortion should have been codified after the Supreme Court ruled against a Texas law criminalizing abortion in Roe, yet it was not. While hindsight bias should not be completely dismissed, this does not warrant the vindication of politicians.
The fall of Roe is not just the fault of Democratic complacency; the last decade has shown Republicans explicitly disregarding Roe before it was overruled and effectively stacking the Supreme Court to ensure an eventual victory on the abortion front.
The Dobbs decision was the culmination of decades of Democratic conceit and Republican pressure, and it has set the stage for innumerable legal and ethical battles to come.
H.R.8296: Women’s Health Protection Act of 2022
H.R.8296 passed the House by a margin of 219–210, with the one representative crossing party lines being Rep. Henry Cuellar, a Democrat from Texas’s 28th District and the only anti-choice Democrat in the House.
The goal of this resolution is “[t]o protect a person’s ability to determine whether to continue or end a pregnancy, and to protect a health care provider’s ability to provide abortion services.”
In a postmortem effort, the current Democratic trifecta wants to restore the abortion rights guaranteed under Roe. The push to secure the right to abortion on a federal level is too little, too late. Despite a majority of Americans supporting the right to an abortion, there is not a majority in Congress able to codify this right.
H.R.8296 is headed to the Senate, where it is basically certain to fail to achieve a majority for President Joe Biden to sign into law. With Senator Joe Manchin III (D-WV) already saying he would not support a bill he calls too broad and the only two persuadable Republican Senators, Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME), unlikely to restore the protections afforded by Roe, this resolution is dead on arrival in the Senate.
Democrats had five congresses after Roe to prevent “[a] prohibition on abortion at any point or points in time prior to fetal viability” as this bill seeks to do. They failed.
H.R.8297: Ensuring Women’s Right to Reproductive Freedom Act
H.R.8297 was written to prohibit the prosecution of anyone who travels across state lines in order to obtain an abortion. This would allow pregnant people to leave a state where abortion is completely or mostly banned and travel to another state that has freer access to abortion.
This resolution was only slightly more bipartisan than H.R.8296, with all Democrats voting in favor with three Republicans joining. Those Republicans were Reps. Fred Upton (R-MI-6), Brian K. Fitzpatrick (R-PA-1), and Adam Kinzinger (R-IL-16); all are generally anti-choice, but hold more moderate positions than their colleagues.
The bill would prevent the criminalization of “any person’s ability to travel across a State line for the purpose of obtaining an abortion service that is lawful in the State in which the service is to be provided.”
Individual liberty and the freedom to travel were likely the main reasons the three Republicans voted for this bill, even if they disagree with the reasoning behind the decision to travel.
However, H.R.8297 will almost certainly fail in the Senate, joining a plethora of bills killed by the filibuster and general political negligence.
After the Roe decision in 1973, there were five congresses in which Democrats held a government trifecta— the 95th, 96th, 103rd, 111th, and 117th congresses, with the 117th being the current one. Spanning the presidencies of Jimmy Carter, Bill Clinton, Barack Obama, and Joe Biden, four presidents had clear opportunities to enshrine reproductive rights in federal law, but did not. (Joe Biden, of course, leads a 50–50 split Senate, which has been unable to pass most of his goals).
Five clear chances to codify the protections of Roe. Ten years of missed opportunities.
In hindsight, the Democratic Party, when in control, should have pushed harder on the topic of abortion. As Justice Samuel A. Alito wrote in his majority opinion in Dobbs, there is precedent for overturning what a previous Court determined to be a constitutional right. While the reasoning behind the reversal of Roe and Casey is flawed, Justice Alito was correct about one thing: in the United States, rights are never guaranteed.
By not writing the freedom to attain an abortion into federal law, Democrats left the door open for a rogue Supreme Court to do away with Roe.
Democrats had wide latitude to prevent what occurred in the Dobbs decision numerous times in the past five decades. Yet a combination of naïveté and complacency among Democrats and a pugnacious Republican Party resulted in one of the most significant legal about-faces in American history, stealing the fundamental right of bodily autonomy away from tens of millions of Americans.
Democratic miscalculation by itself is not the only reason for the fall of Roe. The historical ability of the conservative party, the modern Republican Party, to bend the American political and legal system to its will has allowed it to push its agenda, even if it should not have the democratic power to do so.
In the early decades of the 1900s, Southern Democrats, the conservative party of the time, filibustered numerous anti-lynching and desegregation bills. Despite having a minority in the Senate and representing a minority of Americans, a small group of Senators were able to stall the progress of civil rights in America for decades.
In the contemporary era, Republicans have used the filibuster to turn what should be a simple majority process into a constant supermajority requirement for substantive bills around 70 percent of the time since the beginning of this century.
Abortion is one of the most significant topics in the American political conversation, and the minoritarian rule of both the Republican Party and the Supreme Court degrades the debate.
A conservative Supreme Court
The conservative wave that dominates the Supreme Court is seen the clearest after the 2016 death of Justice Antonin Scalia. Then-President Barack Obama nominated Merrick Garland, the chief judge on the U.S. Court of Appeals for the District of Columbia Circuit, to fill his seat. This was in February of an election year, approximately nine months until Election Day. Senator Mitch McConnell (R-KY), who was Senate Majority Leader at the time, stonewalled his nomination, saying Justice Scalia’s “vacancy should not be filled until we have a new president.”
Sen. McConnell won this battle; Merrick Garland never saw a confirmation vote. Following Donald J. Trump’s election victory in 2016, he promptly nominated Neil M. Gorsuch on January 31, 2017, and he was confirmed by a vote of 54–45. This was the first Trump Justice.
In the summer of 2018, Justice Anthony M. Kennedy announced his retirement, giving Mr. Trump his second Supreme Court Justice. Kennedy was a moderate nomination of Ronald Reagan, and he voted in the majority in the Casey ruling, which was struck down by a majority that included his replacement, Brett M. Kavanaugh. Justice Kavanaugh’s confirmation was controversial from the start, underscored by his confirmation vote of 50–48–1.
Despite having a 5–4 conservative majority, the Supreme Court was not poised to overturn Roe v. Wade. Then came the death of Justice Ruth Bader Ginsburg.
Almost immediately following Justice Ginsburg’s death on September 18, 2020, former President Trump nominated Amy Coney Barrett, a law professor and federal court judge to replace her. She previously clerked for Justice Antonin Scalia, the conservative Justice who was replaced by Justice Neil Gorsuch.
Mitch McConnell rushed her confirmation through the Senate, confirming her by a vote of 52–48. This was a mere thirty days after her nomination and about a week before the 2020 presidential election. Mr. McConnell hypocritically ignored his own words to advance a political agenda that has stripped the rights away from the American people.
With three Trump Supreme Court appointees, the Court was stacked with a 6–3 conservative majority. Mr. Trump made rejecting Roe v. Wade a litmus test for potential Supreme Court nominees, and his selections ultimately delivered on Mr. Trump’s campaign promise.
Overturning Roe v. Wade has been a right-wing goal since it was decided in 1973, but even now that it has been overturned, some ambitious conservatives are eyeing other civil rights. In a concurring opinion, Justice Clarence Thomas, the most conservative Justice on the Court, suggested that the Court “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” referring to cases that guaranteed the right to contraception, same-sex sexual relationships, and same-sex marriage, respectively.
In an effort to staunch the bleeding of Americans’ civil rights, the House, in addition to the aforementioned H.R.8296 and H.R.8297, passed bills codifying the right to same-sex and interracial marriage and contraception. While all face an uphill battle in the Senate, there is at least more support for these bills than the ones reaffirming the holdings of Roe.
Democrats blundered by not codifying Roe when they had the chance — and they had numerous chances — but now they hope to blunt the increasing rightward shift of the Supreme Court by strengthening other civil rights decisions.
President Biden emphasized the need to vote in the next elections to ensure that every American is treated as an equal under the law. He is correct in his push to vote, but that does not mean anyone should ignore the failures of America’s political parties.
The Dobbs decision exemplifies the American political failings that continue to threaten basic civil rights. America’s political parties must not be allowed to drag their feet as the rights of Americans continue to die.