The Women’s Health Protection Act of 2023: An Effort to Push Back on the Supreme Court Dobbs Decision

Health and Gender Policy Brief #164 | By: Carlos Avalos | September 18, 2023

Photo taken from: cnn.com

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Bill H.R. 12, entitled the Women’s Health Protection Act of 2023 was introduced on 03/30/2023 by California Representative Judy Chu from the 28th District. On 4/7/2023 the bill was referred to the subcommittee on Health. Many times, after a bill is introduced, it is sent to a subcommittee for review and analysis. This is called the mark up period. Bills in the House of Representatives can only be released from committee with a proper committee vote by a discharge petition signed by most of the House sub-committee membership.

The Composition of a subcommittee is members who have expertise in a specific area of public policy, in this case it would be health care. There will most likely be hearings in the subcommittee on H.R. 12 being that the topic of Women’s reproductive rights is such a heavily debated American topic and partisan issue in Congress there is a very good chance the bill won’t leave the subcommittee on health care. For these same reasons and others, it might take months or more than a year for it to leave the House chamber and have the potential to enter the Senate.

This bill prohibits governmental restrictions on the provision of, and access to, abortion services. Specifically, before fetal viability, governments may not restrict providers from using abortion procedures or drugs, offering abortion services via telemedicine, or immediately providing abortion services if delaying risks the patient’s health. Fetal liability is the ability of a human fetus to survive outside the uterus. H.R. 12 makes it so, governments may not require a provider to perform unnecessary medical procedures, provide medically inaccurate information, or comply with credentialing or other conditions that do not apply to providers whose services are medically comparable to abortions. H.R. 12 also makes it so governments MAY NOT (1) require patients to make medically unnecessary in-person visits before receiving abortion services or disclose their reasons for obtaining such services, or (2) After fetal viability, governments may not restrict providers from performing abortions when necessary to protect a patient’s life and health. The Department of Justice, individuals, or providers may sue states or government officials to enforce this bill, regardless of certain immunity that would otherwise apply.

Analysis

The impetus to this bill is debatable but seems to center around a few key moments in recent American History. The first one being in the SCOTUS decision in Dobbs v. Jackson Women’s Health Organization. This decision stripped away the constitutional right to abortion established in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey, and paved the way for states to ban abortion outright.

In 2018, Mississippi passed a law called the “Gestational Age Act,” which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age; about two months earlier than Roe and later decisions allow. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order (TRO). The legal question asked in Dobbs v. Jackson Women’s Health Organization was “Is Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age unconstitutional”?  The SCOTUS OPINION authored By Samuel Alito stated, “the Constitution does not mention abortion, the right is neither deeply rooted in the nation’s history nor an essential component of “ordered liberty.”

Further stated in the opinion was the notion that “the Constitution does not confer a right to abortion; Roe v. Wade, 410 U.S. 113, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, are overruled.”

Nearly 51 years ago SCOTUS legalized abortion in the U.S with its decision in Roe v. Wade. In this watershed moment and landmark decision, the Supreme Court established a constitutional right to abortion. This ruling struck down laws in many states that barred abortion, declaring that they could not ban the procedure before the point at which a fetus can survive outside the womb. Many states, since the Dobbs v. Jackson Women’s Health Organization decision, have reverted back to the pre-Roe days and implemented a total or severely excessive ban and curtailment on a women’s right to choose and women’s reproductive rights.

The Bill will have a hard time to pass the House where the Republicans have a majority. This Bill does have an OUTSIDE chance to pass the Senate and bestow hope for abortion rights nationally that has been curtailed after fifty years of reproductive progress. Currently in the U.S Senate there are 48 Democrats in the Senate and 49 Republicans with 1 Independent undeclared caucus affiliation, but the Democrats do have the ever so slight majority. Anything is possible in U.S politics and the bill could die in the Senate for a host of reasons. It could be talked to death by the ever-popular tactic of the Filibuster. Or some right leaning democrats might believe the bill is extreme like they did in H.R. 8296 and vote not according to party lines.

Most Americans do believe that abortion should be legal, at least in certain circumstances, and that it is in fact the women and only the women’s choice to make about her reproductive health. It should be noted, according to Gallup’s May 2023 update on Americans’ abortion views, 34% believe abortion should be legal “under any circumstances,” 51% say it should be legal “only under certain circumstances,” and 13% say it should be illegal in all circumstances.

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