Abortion Legalization: Can It Be Codified Into Law?

The topic of abortion has been a highly debated issue in the United States for decades. In 1973, the Supreme Court's Roe v. Wade decision established the constitutional right to abortion before fetal viability. However, in recent years, there have been increasing efforts to restrict abortion access, with the Supreme Court's Dobbs decision in 2022 revoking the national right to abortion and overturning the precedent set by Roe v. Wade. As a result, there have been calls from politicians and advocates to codify abortion rights into law, specifically through the Women's Health Protection Act. This act aims to protect a person's right to end a pregnancy and guarantee access to abortion services nationwide. While some states have introduced legislation to codify Roe v. Wade, the passage of federal legislation has faced obstacles due to political differences and the filibuster rule in the Senate. The debate surrounding abortion continues to be a divisive issue in the United States, with ongoing efforts to protect or restrict abortion rights.

Characteristics of "Can Abortion be Codified into Law"

The Women's Health Protection Act

The WHPA is a response to the actions taken by many states to deny abortion care following the U.S. Supreme Court's decision to overturn Roe v. Wade. This ruling eliminated the constitutional right to abortion, and as a result, abortion is currently illegal in 13 states, with more states expected to follow suit. The WHPA aims to address this by creating a new legal protection for the right to provide and access abortion care.

The WHPA establishes a statutory right for healthcare professionals to provide abortion services and for patients to receive care, free from bans and medically unnecessary restrictions that specifically target abortion care. These restrictions, often referred to as TRAP (Targeted Regulation of Abortion Providers) laws, place an "undue burden" on those seeking abortions. The WHPA seeks to protect the ability of healthcare providers to offer these services in a safe and accessible manner, without limitations that single out abortion services for more burdensome restrictions.

The WHPA also recognizes the harm caused by restrictions on abortion services, which undermine the autonomy, dignity, and equality of individuals, particularly women. It acknowledges that access to abortion services is critical to the health of everyone capable of becoming pregnant, including cisgender women, transgender men, non-binary individuals, and others. By protecting reproductive justice and the human right to bodily autonomy, the WHPA seeks to address discriminatory barriers to healthcare access that disproportionately affect communities of color, women, and those facing financial challenges.

The Freedom of Choice Act

The bill is supported by pro-choice advocates who argue that it would affirm a pregnant person's right to an abortion and repeal federal restrictions on abortion, such as the Partial-Birth Abortion Ban Act. They also argue that it would protect religious hospitals from being forced to perform abortions through existing conscience clause laws.

However, the act faces strong opposition from pro-life organizations and religious groups, such as the U.S. Conference of Catholic Bishops (USCCB). Opponents interpret the act as an attempt to obligate religious hospitals to either perform abortions or close and argue that conscience clause laws are weak and do not explicitly protect religious hospitals from performing abortions.

The Secure Access for Essential Reproductive (SAFER) Health Act

The SAFER Health Act seeks to address gaps in current health privacy laws, such as HIPAA, which leave patients vulnerable to legal repercussions. It would prohibit medical providers from disclosing personal health information related to abortion or pregnancy loss without the patient's consent. This is particularly important as, currently, state laws can ban abortions, and if court orders or subpoenas are received, providers must share reproductive health information without patient consent. The SAFER Health Act would eliminate this loophole and ensure that doctors must gain consent before sharing any personal health information.

The Act would also expand upon HIPAA to include further restrictions on disclosing personal health information related to reproductive healthcare. It would apply to federal, state, local, or tribal proceedings, including civil, criminal, administrative, or legislative proceedings. The Department of Health and Human Services (HHS) would be directed to revise HIPAA regulations to enforce the Act and conduct a national campaign to educate covered entities and their associates about the revisions.

The SAFER Health Act is a significant step towards protecting patients' privacy and ensuring they can access essential and time-sensitive healthcare without fear of prosecution. It gives patients better control over their reproductive information and ensures the privacy protections we expect when working with physicians.

The role of the Democratic Party

The Democratic Party has a substantially different stance on abortion rights compared to the Republican Party. While the Republican Party platform mentions "abortion" only once in 28 pages, the Democratic Party, through figures like Kamala Harris, has actively advocated for reproductive rights and positioned abortion bans as evidence of barbarity, especially in cases of medical emergency. This advocacy has included bus tours in states like Florida, which has a six-week abortion ban, to restore legal access to abortion before viability or when necessary to protect a patient's health.

The Democratic Party recognises the complex and often reluctant nature of women's decisions to have abortions. Research highlights that financial reasons, partner-related issues, and struggles with existing children are among the primary factors driving abortion choices. To address these challenges, Democrats propose strengthening the social safety net to provide greater support for women facing crisis pregnancies. This support can be practical, such as through pregnancy support centres, and cultural, by embracing and celebrating women who bear children in difficult circumstances instead of shaming them for their decisions.

Democrats also emphasise the need to address the epidemic of sexual violence and defend its victims. They support legislative reforms to protect women and children, such as strengthened mandatory reporting laws at healthcare facilities to identify child sex abuse victims and legislative models like the Child Protection Act. Additionally, Democrats recognise the role of medication abortion in circumventing abortion bans and ensuring access to reproductive rights.

While there are variations within the party, with organisations like Democrats for Life of America adopting a pro-life stance, the Democratic Party's overall commitment to reproductive freedom stands in contrast to the Republican Party's focus on late-term abortion and the protection of "unborn children" under the 14th Amendment.

The impact on blue and red states

The impact of codifying abortion into law will differ significantly between blue and red states. Blue states, which are typically more liberal and pro-choice, are likely to pass more laws codifying Roe v. Wade and expanding access to abortion rights. This is already happening in states like Colorado, New Jersey, Washington, Illinois, and New York, which have passed laws codifying abortion rights and reproductive freedoms. These states may also see an influx of people seeking out-of-state abortions, which could overwhelm clinics and providers.

On the other hand, red states, which are generally more conservative and pro-life, are expected to continue enacting restrictions on abortion rights. These states may try to revive pre-Roe abortion bans or pass new laws that ban abortion outright, as seen in states like Indiana, Iowa, and West Virginia. They may also impose various restrictions, such as parental consent or notification laws, mandatory waiting periods, and counseling requirements.

The impact of codifying abortion into law at the federal level, as proposed by some politicians and advocates, would standardize abortion rights across all states. It would provide a uniform set of protections for pregnant individuals seeking abortions, regardless of their state of residence. This could alleviate the burden on blue states that are currently preparing for a surge of out-of-state patients seeking abortions.

However, the likelihood of passing such federal legislation remains uncertain. The Women's Health Protection Act, which aimed to codify Roe v. Wade, has faced challenges in the Senate, and there is opposition from some Republicans in Congress. The upcoming midterm elections could also shift the political landscape, potentially impacting the prospects of federal abortion legislation.

In conclusion, the impact of codifying abortion into law will be felt differently in blue and red states. Blue states are likely to embrace abortion rights and expand access, while red states will continue to restrict abortion. Federal legislation could standardize abortion rights, but its passage remains uncertain, leaving the future of abortion rights in the hands of individual states.

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