The Senate voted to kill the Women’s Health Protection Act of 2021 Monday, Feb. 28. Don’t let the name fool you; it was just another attempt by progressive Democrats to codify a right to abort in federal law. With states passing new restrictions and a predominately conservative Supreme Court considering legal challenges that have pro-choice activists trembling, the so-called reproductive right is a hot issue. The bill may have flopped in the upper chamber, but some argue the loss can be used to snatch victory from the jaws of defeat come election time in November. Can Democrats scare enough voters to break the impending red wave? Let the spin begin.
Setting The Narrative
Some version of this bill has come before every Congress since 2013, but this most recent effort is special. Rep. Judy Chu (D-CA) introduced the cleaver bit of legislation on July 6, 2021, and the House passed it 218-211 on September 24. While Democrats champion this as a backstop should Roe v. Wade be overturned, in reality, it does much more.
Under the WHPA, no state could pass a law that blocks abortion before the point of viability. That means no more so-called heartbeat bills. Even after the point of viability, abortions would be federally protected so long as the “treating health care provider,” who under this law doesn’t necessarily have to be a doctor, believes in “good-faith medical judgment” that continuing the pregnancy could “pose a risk to the pregnant patient’s life or health.” Such open-ended language could be argued to allow late-term abortions in any pregnancy, as there are always risks.
Furthermore, no law could require any medical tests or even an in-person consult before a pregnant woman could be prescribed – over the phone – medication to abort. Parental notice and consent for minors also wouldn’t be allowed. Even a regulation that has a “reasonable likelihood” of deterring some patients indirectly would be prohibited, and defending such a law would require “clear and convincing evidence” that it “significantly advances the safety of abortion services” in a way that can’t be achieved through less restrictive ways.
As if that weren’t radical enough, the bill also explicitly states that it applies to any state or federal law “whether adopted before or after the date of enactment of this Act.” Taken literally, this would undo even the regulations already in place. Furthermore, since the WHPA also empowers both the individual and the Department of Justice to sue any state over such a law, an argument could be made for suits against any state that has previously passed any restriction that would become prohibited, regardless of how constitutional they might have been before.
Spin That Yarn
“The American people deserve to see that while Democrats are fighting to protect their constitutional rights, Republicans are hoping the Supreme Court rolls back Roe and are actively blocking Congress from acting to protect reproductive rights,” declared Sen. Tammy Baldwin (D-WI) before the vote. That’s a pretty tale for the left – but it falls just a little short of the truth.
With exactly half of the Senate occupied by Democrats or Independents who are Democrats in all but name, Vice President Kamala Harris’ tie-breaking vote gives her party a technical majority in the upper chamber – which means a trifecta of power over the federal government. Dems love to point to party-line votes and proclaim that the GOP is standing firmly in the way of progress. If only it weren’t for that dang old filibuster. But in truth, Democrats could eliminate that procedural hurdle entirely if they only held a true majority. Luckily for the Republic, they don’t. All 50 Republicans and at least two of the Democrats – Joe Manchin of West Virginia and Arizona’s Kyrsten Sinema most often, though others occasionally join in – hold a slim majority against eliminating the filibuster.
In this vote, however, not even that much-ballyhooed Senate rule is to blame. In the 46-48 vote, Sen. Manchin sided with the GOP, as was expected. Still, even had he stood with his own party members, the vote would have failed 47-48. Bob Casey (D-PA) was the only other Democrat who didn’t co-sign the bill. While he did vote to open discussion, there’s no guarantee he would have endorsed the finished product. Even had all 48 Democrat co-sponsors been present and voted for it, that’s still two shy of a 50/50 split that could be weighted their way by the VP if it weren’t for the filibuster. Even the pro-abortion Republicans Susan Collins of Maine and Lisa Murkowski of Alaska voted against beginning debate – and they followed up by introducing a bill of their own to codify Roe v. Wade, if not in such a broad manner as the WHPA. This bill is simply too extreme for moderate Democrats and pro-abortion Republicans to accept – and it likely only received a House vote in reaction to the Texas heartbeat bill banning abortions after six weeks.
Rally Around Abortion?
The vote represents yet another legislative loss for the Democrats. However, with the right spin, it also presents an opportunity for fearmongering to drive liberal voters otherwise disinterested and disheartened by the party’s lackluster performance to show up on election day. “It’s laying the groundwork for a very powerful contrast,” explained Democratic pollster Celinda Lake. “One of the biggest problems we have is convincing voters that any rights they have would ever be taken away, or that we would ever backtrack.” But this, along with the Supreme Court deliberations, can easily be presented as a crisis.
“We’re going to hold accountable every senator who votes against this bill,” Sen. Richard Blumenthal (D-CT) warned earlier. “Make no mistake, reproductive freedoms will be on the ballot this November.” Will Democrats really campaign on their own failures? Don’t doubt it for a minute. The real question is: How many useful idiots can they fool?
~ Read more from James Fite.