The Bill That Could Protect Abortion Rights If Roe Is Overturned

The Women’s Health Protection Act would outlaw hundreds of state anti-abortion laws — but passing it would likely require eliminating the Senate filibuster.

Alanna Vagianos
Updated December 3, 2021

Rep. Judy Chu (D-Calif.) speaks at an event on behalf of the over 400,000 people who signed petitions to urge the Senate to protect abortion rights at an event outside of the U.S Capitol Building on Sept. 29.
PAUL MORIGI VIA GETTY IMAGES

Inside the Supreme Court on Wednesday, justices heard oral arguments in Dobbs v. Jackson, a potentially landmark abortion case involving Mississippi’s attempt to ban all abortions past 15 weeks of pregnancy. Experts agree, based on what some justices asked during arguments, that the court’s conservative majority is prepared to not only uphold the Mississippi law but perhaps take an ax to the fundamental abortion rights guaranteed by Roe v. Wade.

Outside, on the steps of the Supreme Court, lawmaker after lawmaker offered a potential solution: The Senate needs to pass the Women’s Health Protection Act (WHPA).

The legislation would protect the right to access legal abortion care across the country by providing safeguards against state bans and medically unnecessary hurdles. The bill, which passed with historic support in the House in September, would outlaw all abortion restrictions that “are more burdensome than those restrictions imposed on medically comparable procedures ... do not significantly advance women’s health or the safety of abortion services, and … make abortion services more difficult to access.”

Essentially, WHPA would make all of the hundreds of anti-abortion laws passed on the state level since 2011 illegal. In 2011, the country saw an unprecedented slew of unnecessary abortion restrictions ― like specific requirements for the width of a clinic door and waiting periods before getting an abortion ― enacted by anti-choice lawmakers who were trying to cut off access.

“The Court may never say Roe v. Wade is overturned, it may just chip away at it. That’s why in that building, in the United States Capitol, we need the Women’s Health Protection Act,” said Sen. Richard Blumenthal (D-Conn.).

“While the Supreme Court must do their constitutional duty and uphold that right, the Senate must do theirs by passing the Women’s Health Protection Act,” tweeted Rep. Pramila Jayapal (D-Wash.) shortly after stepping off the podium on Wednesday.

It’s likely that the law would face serious challenges in court, and probably end up back in front of the same 6-3 conservative majority, but that’s a fight many Democrats and abortion advocates want to have. “The Women’s Health Protection Act would make the provisions of Roe v. Wade the law of the land regardless of what zip code you are in. There would be challenges, of course, but yes, it would be indeed the law of the land,” Rep. Judy Chu (D-Calif.), the lead sponsor of the bill, told HuffPost.

The bill, originally introduced in Congress in 2013, was reintroduced in June. After passing in the House, energy to set a vote in the Senate languished as the Build Back Better bill worked its way through Congress. Senate Majority Leader Chuck Schumer (D-N.Y.) has said the legislation will still get a vote in his chamber.

A serious effort to enact the WHPA would almost certainly have to involve eliminating the Senate filibuster. Sen. Susan Collins (R-Maine) said Wednesday that she opposes the WHPA, though supports codifying Roe in some fashion — but in any event, it’s extremely unlikely that nine other Republican senators agree, meaning any such legislation would never clear the current 60-vote threshold.

Some Senate progressives are calling for exactly that. Sen. Ed Markey (D-Mass.) said in a release Wednesday morning, “We must act immediately, including abolishing the filibuster if necessary, to pass federal legislation that protects millions of Americans’ access to legal abortion care.”

The majority of Americans, 60%, want the Supreme Court to uphold Roe v. Wade, and 75% believe that the decision to have an abortion should be left to a person and their doctor. But state laws don’t reflect that. Since Roe was codified in 1973, states have enacted 1,327 abortion restrictions into law, 580 of which were put in place since 2011. Nearly 100 of those restrictions were put in place this year alone.

“The Women’s Health Protection Act is really about helping to ensure that abortion access is more available across the country. We’re not in the situation where getting an abortion in Louisiana looks all that much different than getting an abortion in New York,” explained Elizabeth Nash, a principal policy associate at the Guttmacher Institute.

Advocates and lawmakers told HuffPost that passing WHPA and the Equal Access To Abortion Coverage (EACH) Act is the best solution to combat the potential fall of Roe. The EACH Act aims to reverse the Hyde Amendment and other insurance-related abortion coverage restrictions. The bill would largely benefit low-income people, who account for 75% of those seeking abortion care.

“People who are on Medicaid, people who are poor, have a financially burdensome job when trying to access abortion,” Rep. Lois Frankel (D-Fla.), a sponsor of WHPA, told HuffPost. “Wealthy women always have and always will be able to get access to abortion. [If Roe is overturned], they’ll fly to a state that makes it legal because they’ll have the money to do it. But, really, the average woman won’t have the ability to do that.”

There is no set date for a Senate vote on the Women’s Health Protection Act. The Supreme Court decision after Wednesday’s arguments isn’t expected until spring or early summer 2022.