4:25 p.m. update: In a 51-49 vote on Wednesday, the U.S. Senate blocked the Women’s Health Protection Act, which sought to codify the right to an abortion into law.
COLUMBUS, Ohio (WCMH) – As the U.S. Senate is poised to vote on a bill to codify Roe v. Wade into law Wednesday, Ohio lawmakers scramble to keep up with the ever-changing abortion landscape in the country.
The scheduled vote on the Women’s Health Protection Act – which codifies the right to abortion into federal law – comes two weeks after a bombshell leak of the draft majority opinion outlining the Supreme Court’s plans to overturn the 1973 decision that legalized abortion circulated throughout the country.
While the bill seems unlikely to pass the Senate, it could dramatically shift the landscape for U.S. states like Ohio that are preparing to roll back abortion rights in anticipation of a Supreme Court decision expected to come in June, according to Lawrence Baum, emeritus professor of political science at Ohio State University.
“Even if the Constitution itself doesn’t protect the right, Congress has the power to add its own protection, in the same way that it prohibits employment discrimination,” Baum said. “It’s saying that even something that the Constitution doesn’t reach can be protected by statute, by law passed by Congress.”
What does the Women’s Health Protection Act do?
If enacted, Baum said the WHPA would supersede a Supreme Court decision reversing Roe v. Wade and also would void state legislation aimed at curtailing access to abortion, including two trigger bills pending in Ohio.
Under the bill, which passed the House but remains stalled in the Senate, governmental agencies are barred from prohibiting abortion before a fetus’ viability, which is generally considered to be the 24th week of pregnancy.
The bill also prohibits clinics or other agencies from requiring a patient to disclose their reason for obtaining an abortion or attending “medically unnecessary in-person visits” before receiving abortion services.
“It’s pretty sweeping in how much it limits the power of states to regulate abortion,” Baum said.
But even if it were to pass the Senate, Baum said the bill would likely be challenged in court.
“The states whose policies are in conflict with the law, and that’s probably a majority of the states – at least some of them would then seek an injunction to prevent the law from going into effect,” Baum said. “And what they would argue is that Congress didn’t have the power under the Constitution to enact the law.”
Congress relied on several constitutional powers granted to the legislature to argue it has the authority to enact the WHPA, including its ability to regulate interstate commerce and enforce the provisions of the Fourteenth Amendment, Baum said.
Given the Supreme Court’s current interpretation of Congress’ powers, Baum said it’s likely the conservative-majority court would hold that Congress doesn’t have the power to enact the WHPA.
“We don’t know for sure,” Baum said. “But it’s not at all certain that the court would accept the law.”
WHPA is unlikely to receive enough votes in the Senate
The WHPA is unlikely to pass the Senate, Baum said, as it’s unclear whether all 50 Democrats will support it. Even with full Democratic support, the WHPA needs 60 votes to avoid a filibuster, which allows a lawmaker to prolong debate and prevent a vote from happening.
Elizabeth Whitmarsh, a spokesperson for the Ohio Right to Life, said the fact that Democrats have control of both congressional chambers and the White House – but have yet to garner enough support to codify Roe into law – speaks volumes.
“It’s very obviously virtue-signaling to the base for the pro-abortion politicians,” Whitmarsh said. “They know it has absolutely no chance of passing, but they’re going through the motions just to virtue-signal.”
While Planned Parenthood of Greater Ohio spokesperson Aileen Day said she’s pleased that Congress is taking steps to codify Roe v. Wade, she condemned Democrats for failing to take action sooner.
“Democrats always prioritize other things before abortion, and it has taken a backseat time and time again, and Ohioans are really going to have to pay the price for that,” Day said.
Abortion bans on the books in Ohio
The Ohio Right to Life has praised state lawmakers’ introduction of two “trigger” bills that would impose a de facto ban on abortion in Ohio, with no exceptions for rape or incest.
While Planned Parenthood of Greater Ohio is weary of the trigger bills, Day said legislation signed into law by Gov. Mike DeWine is its utmost concern, as it would go into effect sooner than the trigger bills.
Ohio Attorney General Dave Yost plans to file a motion to lift an injunction against the 2019 “heartbeat bill,” a six-week abortion ban signed into law by DeWine that was blocked by a federal judge who deemed it violated Roe v. Wade, according to Yost’s spokesperson Bethany McCorkle.
“If they (the trigger bans) pass and go through all the chambers in the Statehouse and are signed into law, it will still take 90 days for that trigger ban to go into effect,” Day said. “So we’re really first worried about that six-week ban.”
As the Ohio Right to Life prepares for the Supreme Court to outlaw abortions, Whitmarsh said the group is looking forward to Ohio’s Human Life Protection Act making its way to DeWine’s desk.
“No amount of political theater in Washington can stop us from saving the vulnerable lives in the womb,” she said.