The Abortion Law: Congress' Legislation And Its Impact

Abortion is a divisive issue in American politics and culture, with a majority of Americans supporting access to abortion. While Congress has the power to pass laws protecting abortion rights, it has not done so. In 2021, the House passed the Women's Health Protection Act, which aimed to prohibit states from passing most abortion restrictions before fetal viability. However, the bill failed to pass in the Senate, and abortion remains a highly contested issue in the United States, with laws and access varying widely from state to state.

The Women's Health Protection Act

The WHPA was first introduced in 2021, in response to increasing restrictions on abortion access across the United States. Since the Supreme Court's decision in Roe v. Wade, which decriminalized abortion nationwide, various methods have been used to obstruct access to abortion services, including blockades of health care facilities, prohibitions on insurance coverage, parental involvement laws, and medically unnecessary regulations. These restrictions have disproportionately impacted people with low incomes, Black, Indigenous, and other People of Color, immigrants, young people, people with disabilities, and those living in rural and medically underserved areas.

The WHPA seeks to address these issues by prohibiting states from imposing restrictions that jeopardize access to abortion, such as arbitrary waiting periods or medically unnecessary mandatory ultrasounds. It also ensures that states cannot limit access to abortion if it would jeopardize the life or health of the mother, and protects the ability to travel out of state for an abortion. The Act further establishes that abortion services are essential to health care and that access to these services is central to people's ability to participate equally in the economic and social life of the country.

The WHPA passed the House of Representatives in September 2021 and July 2022 but failed to achieve the 60 votes needed to overcome the filibuster in the Senate. However, with the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturning Roe v. Wade, there is renewed urgency to pass federal legislation protecting abortion rights.

Roe v. Wade

The Supreme Court ruled in McCorvey's favour, holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. The Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life.

The Supreme Court's decision in Roe was among the most controversial in U.S. history. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision. In June 2022, the Supreme Court overruled Roe and ended the constitutional right to abortion.

Dobbs v. Jackson Women's Health Organization

In a divided opinion, the Court upheld the Mississippi law and overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992)—concluding that the Constitution does not protect the right to an abortion. As a result, the Court's decision returned the issue of abortion regulation to the elected branches.

In an opinion concurring in the judgment, Chief Justice Roberts agreed to uphold the Mississippi law, but criticised the majority for reaching out to decide the broader question of whether to overrule Roe and Casey. He would have left that important constitutional question to a future case. Finally, in a rare joint dissent, Justices Breyer, Kagan, and Sotomayor criticised the Court for unsettling nearly five decades of precedent and undermining the Constitution's promise of freedom and equality for women.

The Court's ruling in Dobbs was based on the argument that the Constitution makes no reference to abortion and that any such right must be "deeply rooted in this Nation's history and tradition". The Court found that the right to abortion does not meet this standard, as it was entirely unknown in American law until the latter part of the 20th century.

The Dobbs decision has had a significant impact on abortion access in the United States, with several states enacting trigger laws that effectively ban abortions. The decision has also sparked a broader debate about the role of the Court in interpreting the Constitution and the extent to which it should consider societal changes and evolving standards.

The Partial-Birth Abortion Ban Act

The Act amends the Federal criminal code to prohibit any physician or other individual from knowingly performing a partial-birth abortion, except when necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury. The Act defines a "partial-birth abortion" as an abortion in which the person performing the abortion:

> (1) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the mother's body, or, in the case of a breech presentation, any part of the fetal trunk past the navel is outside the mother's body; and (2) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

The Act also authorises the father, if married to the mother, and the maternal grandparents of the fetus (if the mother is under 18) to take civil action, unless the pregnancy resulted from the plaintiff's criminal conduct or with their consent. A defendant accused under the Act may seek a hearing before the State Medical Board to determine if the procedure was necessary to save the mother's life.

The constitutionality of the Act was challenged immediately after it was signed into law, with three U.S. district courts declaring it unconstitutional due to the omission of an exception for the health of the woman. The Supreme Court upheld the Act in 2007 in the case of Gonzales v. Carhart, with Justice Anthony Kennedy writing for the majority that the Act "does not violate the Constitution".

The Freedom of Access to Clinic Entrances Act

In 1994, Congress passed the Freedom of Access to Clinic Entrances Act (FACE) in response to an increase in violence toward providers and patients of reproductive health services. The Act prohibits violent, threatening, damaging, and obstructive conduct intended to injure, intimidate, or interfere with the right to seek, obtain, or provide reproductive health services.

FACE creates federal jurisdiction and penalties for individuals who:

• By force, threat of force, or physical obstruction, intentionally injure, intimidate, or interfere with any person seeking to obtain or provide reproductive health services.
• Intentionally damage or destroy the property of a facility providing reproductive health services.

The Act defines "interfere with" as restricting a person's freedom of movement, "intimidate" as placing a person in reasonable apprehension of bodily harm, and "physical obstruction" as rendering ingress or egress from a facility impassable or unreasonably difficult or hazardous. "Reproductive health services" include those provided in a physician's office or other facilities, including referral services related to the human reproductive system and pregnancy or the termination of a pregnancy.

Conduct found illegal under FACE includes physical attacks on clinic employees and patient escorts, attempted arson of clinic facilities, blockades of clinic entrances, and threats of bodily harm to providers or recipients of services.

The penalty provisions of FACE vary depending on the offense and range from fines, imprisonment, or both. For instance, a first offense may result in a fine, imprisonment for up to one year, or both, while a subsequent offense may lead to a higher fine and imprisonment for up to three years.

FACE also provides for civil remedies, such as temporary or permanent injunctive relief, compensatory and punitive damages, and legal fees, which can be pursued by aggrieved private parties, the federal government, or state governments.

While FACE does not specifically mention abortion, it is important to note that the statute protects all patients, providers, and facilities involved in providing reproductive health services, including those related to pregnancy and its termination.

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