Federal Law: Abortion's Last Stand?

The topic of federal law saving abortion is a highly debated issue in the United States, with varying opinions and legal interpretations. While some argue that federal law can supersede state restrictions and protect access to abortion, others believe it is an unconstitutional overreach. The Supreme Court's overturning of Roe v. Wade has shifted the focus to state-level abortion laws, with varying degrees of protection and restriction across the country. As the debate continues, the impact of federal law remains uncertain, and the future of abortion access in the United States hangs in the balance.

The Women's Health Protection Act of 2021

The Women's Health Protection Act (WHPA) of 2021 is federal legislation that aims to protect the right to provide and access abortion care. It seeks to prevent state and local governments from imposing unnecessary restrictions on abortion services, such as those that single out physicians who provide abortion care or impede access for patients.

The WHPA was introduced in the United States House of Representatives by Representatives Judy Chu, Lois Frankel, Ayanna Pressley, and Veronica Escobar, and in the Senate by Senators Tammy Baldwin and Richard Blumenthal. It passed the House twice, in September 2021 and July 2022, but was defeated in the Senate in February and May 2022.

The Act specifically prohibits governments from limiting providers' abilities to prescribe certain drugs or offer abortion services via telemedicine. It also ensures that providers can immediately perform abortion services when a delay could risk the patient's health. The WHPA prevents governments from requiring providers to perform unnecessary medical procedures, provide medically inaccurate information, or comply with credentialing requirements that do not apply to comparable medical services.

Additionally, the WHPA prohibits governments from requiring patients to make unnecessary in-person visits before receiving abortion services or disclosing their reasons for seeking such care. It also prevents governments from banning abortion services before or after fetal viability when a provider determines that the pregnancy risks the patient's life or health. The Act includes measures to impede access to abortion services, unless the government can demonstrate that these measures significantly enhance the safety of abortion services without imposing less restrictive alternatives.

The WHPA is particularly relevant given the U.S. Supreme Court's overturning of Roe v. Wade, which eliminated the constitutional right to abortion. As a result, many states have moved to restrict or deny abortion care, and abortion is currently illegal in 13 states. The WHPA seeks to protect federal abortion rights and ensure that people across all states have access to abortion care.

The Freedom of Access to Clinic Entrances Act

The Act amends the Federal criminal code to prohibit:

• Intentionally injuring, intimidating, or interfering with, or attempting to do so, any person by force, threat of force, or physical obstruction because that person is or has been, or in order to intimidate such a person or any other person or class of persons from, obtaining or providing reproductive health services.
• Intentionally injuring, intimidating, or interfering with, or attempting to do so, any person by force, threat of force, or physical obstruction exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.
• Intentionally damaging or destroying the property of a facility, or attempting to do so, because such a facility provides reproductive health services, or intentionally damaging or destroying the property of a place of religious worship.

The FACE Act is not solely about abortions. The statute protects all patients, providers, and facilities that provide reproductive health services, including pro-life pregnancy counselling services and any other pregnancy support facility providing reproductive health care. It is worth noting that the Act does not prohibit any expressive conduct protected by the First Amendment, such as peaceful picketing or other peaceful demonstrations.

Since the enactment of the FACE Act, incidents of more disastrous forms of violence, such as murder, attempted murder, bombing, and arson, have decreased. The Clinton administration prosecuted an average of about 10 defendants per year for violations of the Act, while the George W. Bush administration prosecuted about two defendants per year. The US Department of Justice has secured several important decisions using the civil remedies of FACE to win permanent injunctive relief against persons who violated the Act through blockades, "lock-and-blocks", threats, and other obstructive conduct.

The Hyde Amendment

While the Hyde Amendment restricts federal funding for abortion, it is important to note that it does not prohibit abortion entirely. States have the authority to enact their own legislation regarding abortion, and some states provide public funding for abortion care through state Medicaid programs. Additionally, states can require private health insurance plans to include abortion coverage. However, the Hyde Amendment has set a precedent for restricting access to abortion and has influenced other bans and restrictions on abortion at the state level.

Roe v. Wade

The case reached the Supreme Court in 1970 when both sides appealed. The Supreme Court's ruling in Roe v. Wade recognised that the decision to continue or end a pregnancy belongs to the individual, not the government. The Court held that the guarantee of "liberty" in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy, includes the right to abortion prior to fetal viability.

The Roe v. Wade ruling was critical to advancing gender equality in educational, economic, and political spheres. It was also consistent with earlier Supreme Court rulings that recognised a right to privacy that protects intimate and personal decisions from governmental interference. The ruling meant that abortion became legal, more accessible, and safer for many pregnant people across the country.

However, in June 2022, the Supreme Court overturned Roe v. Wade, removing the constitutional right to abortion. This has resulted in abortion bans being revived in several states.

State-level abortion laws

The legality of abortion in the United States varies significantly depending on the laws of each state. While the Supreme Court's 1973 Roe v. Wade ruling federally protected a pregnant woman's right to abortion, this was overturned in 2022, giving individual states the power to restrict or ban abortions.

State laws that protect the right to abortion include requiring states to provide public funding for abortion care in cases of life endangerment, rape, or incest. States can also dedicate funding to cover medically necessary abortion care for Medicaid recipients. Some states have expanded the types of clinicians who may lawfully provide abortion care by repealing physician-only laws. Other laws that protect abortion rights include prohibiting the physical obstruction of clinics, threats to providers or patients, trespassing, and telephone harassment of the clinic, creating a protected zone around the clinic.

On the other hand, some state-level abortion laws seek to restrict access to abortion. For example, the Hyde Amendment withholds federal Medicaid funding from abortion nationwide, with narrow exceptions. Some states require parental consent or notification for minors seeking abortions, and some mandate that patients be shown an ultrasound before obtaining an abortion. Other restrictive laws include banning specific methods of abortion care, such as dilation and extraction (D&X) and dilation and evacuation (D&E) procedures.

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