2018 Could Witness First Federal Abortion Law in the US By Katherine Slye
In November I wrote about heartbeat bills that prevent abortion after 20 weeks of pregnancy. This year there is such a bill at the federal level, The Pain-Capable Unborn Child Protection Act.
The bill passed the House last fall by 237-189 and it seems the Senate is poised to take it up this week. It is clear that if the Senate passes the bill that President Trump will sign it, especially given his strong pro-life stance this last week in speaking to the National March for Life attendees. But will the Senate pass the bill? There are arguments to be made on both sides.
There has never been a federal law criminalizing abortion. Abortion was a state issue before Roe v. Wade. The states had laws limiting who could perform an abortion (licensed doctors), where an abortion could be performed, and placed limits on when a woman could get an abortion (some states had a 20 week limit).
It was not until after Roe that abortion became a national issue. Thus, this is move is not simply a reinstatement of any law long lost, but would be a significant change in the way abortion is regulated. Currently, states have many laws regulating abortion, including some bans after 20 weeks with exceptions for health/life of the mother. The federal government says Medicaid money cannot be used to pay for abortion, but that is it. Most federal abortion law has come directly from the Courts.
Even though members might be pro-life, the vast majority of constituents are pro-choice. According to the 2017 NARAL Who Decides? Report, there are 53 pro-life legislators, 40 pro-choice legislators, and 7 mixed-choice legislators.
According to the latest Gallup Poll, 29 percent of people believe abortion should be legal under any circumstances, only 18 percent believe it should be illegal in any circumstance, and 50 percent of people think abortion should be legal in certain circumstances. Thus, 79 percent of people believe abortion should be legal in at least some instances.
Politicians are always conscious of what the electorate wants, and if public opinion is not favoring a vote, they are unlikely to vote in the other direction, especially in an election year. There are two qualifications to this, however.
First, if those who are against abortion are being louder, this can have the effect of drowning out the actual majority and influence voting. Second, many Senators, especially Republicans, have already announced they will not seek reelection, so they might not feel as beholden to vote a certain way given they will have no consequences to face at the ballot box.
Given how the bill is written, and legal precedent, the law would likely stand. These types of bills are often struck down when passed in the states because they do not have exceptions for life/health of the mother or rape/incest. The Senate bill has these exceptions. The Supreme Court has said such limits are permissible if exceptions are included; to use the logic of Gonzales v. Carhart (2007), the bill is specific and is not too broad.
Ultimately, the Democrats will no doubt filibuster. It will be very difficult for proponents of the bill to the secure 60 votes needed to move forward. If the filibuster is eliminated for legislation, an idea gaining traction within the GOP, then the final vote could be close.
This story was updated at 6:08pm on January 29th.
Katherine Slye, MA is a PhD Candidate at the University at Albany working on her dissertation, which examines the past lobbying strategies of abortion interest groups, "How Choice is Made in the Choice Debate."