The only way to protect U.S. reproductive rights is for Congress to act quickly
Congress should quickly pass federal legislation to protect reproductive freedom for women and preempt state laws that prohibit abortions before viability. The Supreme Court’s refusal to enjoin a Texas law that prohibits abortions after the sixth week of pregnancy leaves no doubt that its conservative majority will soon overrule Roe v. Wade.
For years, Republican presidents have had an open litmus test in picking Supreme Court justices: staunch conservatives committed to overruling Roe. Justices Clarence Thomas and Samuel Alito have long expressed the view that Roe was wrong and should be overruled. President Donald Trump’s three justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — all had prior writings that left no doubt where they stood on abortion.
Still, I was surprised that the Supreme Court allowed Texas’ SB 8 to go into effect, which prohibits abortions once a fetal heartbeat can be detected.
The Texas law also includes an unusual enforcement mechanism. Instead of being enforced by state prosecutors, the law authorizes civil suits for money damages against doctors who perform abortions or those who aid or abet them. This was done to make it harder to challenge the law, with the claim that state officials can’t be sued because they don’t enforce the statute.
All laws of a state must comply with the Constitution. The governor of a state is responsible for upholding its laws and should be able to be sued to stop the enforcement of an unconstitutional law.
As Justice Sonia Sotomayor said in her dissent: “It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”
The Supreme Court’s 5-4 vote refusing to block the Texas law from going into effect is an unequivocal signal of what’s likely to happen next spring when the court decides Dobbs v. Jackson Women’s Health Center. That case involves the constitutionality of a Mississippi law that prohibits abortions after the 15th week of pregnancy. Five justices want to overrule Roe, and they have a case on the docket that will give them the opportunity to do so.
As a result, each state will decide whether to allow or prohibit abortions. The procedure will remain legal in California, but about half the states will prohibit virtually all abortions. Women desiring an abortion who have the money will travel to a state where abortion is legal. Poorer women and teenagers will be forced to choose between an unwanted child and an unsafe, back-alley abortion.
A woman’s fundamental right to reproductive freedom should not depend on her wealth. The only solution is for Congress to pass a federal statute protecting the right of every woman to have an abortion before viability. A bill has been introduced into the House of Representatives and is sure to be enacted. But Senate passage is much less likely — a Republican filibuster is expected, and Democrats have not been willing to change the rules to eliminate filibusters.
Congress has the authority to do this as part of its power to regulate commerce among the states. In fact, Congress used this power to adopt the federal Partial Birth Abortion Ban Act, which prohibits a particular type of abortion procedure.
Unless it is overruled, Roe remains law. Once it’s overruled, a Republican congress and president can not only repeal this law, but enact a federal statute prohibiting abortion. This is likely to occur regardless of whether a federal law is enacted now to protect abortion rights.
Every opinion poll shows a majority of Americans believe women should have the right to choose. That’s been the law since 1973. The only way to protect this right in light of the conservative Supreme Court is for Congress to act.