It has little chance in Congress. But Warren is one of the few Democratic candidates with a clear reproductive rights plan.
The statement, posted on Medium, comes as a wave of strict anti-abortion laws are sweeping the country. On Wednesday, Gov. Kay Ivey of Alabama signed into law a bill banning nearly all abortions in the state, with no exceptions for rape or incest. On Thursday, the Missouri state Senate passed a bill banning the procedure at eight weeks (the bill now goes back to the state House for approval). Many of these laws are aimed squarely at overturning Roe.
Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nations history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roes companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.
This is a dark moment, Warren writes. People are scared and angry. And they are right to be. But this isnt a moment to back down — its time to fight back.
Some Thoughts on Overruling Roe
While many Democratic candidates have condemned restrictive anti-abortion laws in recent days, only a few, like Sen. Kirsten Gillibrand (D-NY), have taken concrete positions on how they would defend abortion access.
One petition (which the Court has been sitting on for months now) presents the questions (1) whether a state may require health care facilities to dispose of fetal remains in the same manner as other human remains (i.e., by burial or cremation); and (2) whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus.
New abortion laws wont return us to a pre-Roe era. Theyll do much worse.
With her statement, Warren joins that group. She calls on Congress to enshrine the right to abortion in federal statute, in case Roe v. Wade is overturned and the current federal right to abortion is taken away. She also calls for a repeal of the Hyde Amendment, which bans federal funding for most abortions, and federal legislation preventing states from passing medically unnecessary restrictions on abortion clinics. And she proposes a reversal of the Trump administrations domestic gag rule, which bars providers that receive federal family planning funds from performing or referring patients for abortions.
And yet another challenges a Fifth Circuit decision that upheld a Louisiana law that requires physicians who perform abortions to have admitting privileges at a local hospital. This is the law that the liberal justices, together with the Chief, blocked from taking effect, so its a safe bet that certiorari will be granted in the case.
The legislation Warren supports has little chance of passage without a Democratic majority in Congress. But anti-abortion groups in recent years have abandoned an incremental approach in favor of a more aggressive one, and have seen major victories around the country. Now Warren is proposing an equally aggressive response.
The Supreme Court has said in Roe v. Wade and in the 1992 decision Planned Parenthood v. Casey that states cannot ban abortion prior to viability, when a fetus can survive outside the womb. But theres no federal statute guaranteeing the right to an abortion. That means that if Roe were to fall, the issue would be left up to the states, which could ban abortion as they see fit. Warren wants to change that, as well as passing other federal laws to help protect access to abortion and other reproductive health care. Heres what her proposal calls for:
The premise of Planned Parenthood v. Casey was that the Courts abortion jurisprudence could succeed in call[ing] the contending sides of a national controversy to end their national division. Doesnt seem to have worked. Casey fails its own test.
Polling data shows that 71% of Americans oppose overturning Roe — including 52% of Republicans, Warren writes. Congress should do its job and protect their constituents from these efforts by establishing affirmative, statutory rights that parallel Roe vs. Wade.
State TRAP laws, like requirements that abortion providers have admitting privileges at a nearby hospital, proliferated in the years after 2010, when Republicans took over many state legislatures. Abortion opponents have argued that they are necessary to protect womens health, but many doctors say they serve no medical purpose.
In 2016, the Supreme Court dealt a blow to the laws, ruling in Whole Womans Health v. Hellerstedt that two such laws in Texas did not have the medical benefit necessary to outweigh the burden they placed on patients seeking abortions. But that was before the appointment of Justices Neil Gorsuch and Brett Kavanaugh to the Court, and a new Court could reverse the decision in Whole Womans Health.
To prevent a resurgence of TRAP laws, Warren is calling for the passage of an existing bill, the Womens Health Protection Act, which bars states from passing restrictions on abortion clinics that do not significantly advance womens health or the safety of abortion services.
Warren calls on Congress to repeal the Hyde Amendment, allowing federal programs like Medicaid to pay for abortion care. She also calls for the passage of the EACH Woman Act, which would ban abortion restrictions in private insurance. And, she writes, we should ensure that all future health coverage — including Medicare for All — includes contraception and abortion coverage.
Advocates of reproductive justice, a holistic approach that considers abortion access as part of a spectrum of health and other issues, have long pointed out that the right to an abortion doesnt mean much if a person cant afford the procedure. Warrens recommendations on insurance are aimed at ensuring abortion is affordable as well as legal.
The Trump administration in March released a rule barring groups that provide or refer patients for abortions from receiving funding under Title X, which provides family planning funds aimed at low-income Americans. The rule would strip funding from Planned Parenthood, which currently serves about 41 percent of patients who get services under Title X, and reproductive health advocates say it will jeopardize low-income Americans ability to get contraception.
The rule has been blocked by the courts for now, but Warren calls for getting rid of it. We must undo the current Administrations efforts to undermine womens access to reproductive health care, she writes — including ending Trumps gag rule and fully support Title X family planning funding.
She also mentions the reproductive justice movement directly, writing that the women of color who founded that movement teach us that we must go beyond choice to ensure meaningful access for every woman in America — not just the privileged and wealthy few.
We must build a future that protects the right of all women to have children, the right of all women to not have children, and the right to bring children up in a safe and healthy environment, she adds.
Warrens recommendations are similar to those issued by Gillibrand on Thursday. Gillibrand also called for codifying Roe into statute and repealing the Hyde Amendment. And she went further by pledging to create a funding stream to ensure reproductive health center access in every state and every region of the country.
Much of what Warren and Gillibrand propose cant be accomplished with the current makeup of Congress. But both have set themselves apart from much of the rest of the Democratic field by calling for specific and far-reaching changes in response to a growing push, from legislatures around the country, to overturn Roe.
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Reaction and analysis from The Federalist senior contributor Mollie Hemingway on Tucker Carlson Tonight.
Sen. Kirsten Gillibrand on Thursday vowed to “codify” Roe v. Wade if elected president, amid a fierce abortion debate in the wake of Alabama’s new state law banning almost all abortion procedures.
During a visit to Atlanta Thursday, the 2020 Democratic presidential hopeful touted her “robust reproductive rights agenda,” and promised to take her plans a “step further.”
“First, as president, I will codify Roe v. Wade. I will make it clear beyond a shadow of a doubt that women in this country have a guaranteed right to an abortion,” Gillibrand, D-N.Y., said.
“Second, I will end the Hyde Amendment, which disproportionately blocks women of color and women with low incomes from getting access to abortion services,” she continued. “And third, in the most sweeping step that I’m going to take as president, I will guarantee access to reproductive health care, including abortion, no matter what state you live in.”
Gillibrand added that she would create a “funding stream” to make sure that women have access to reproductive health centers in every state.
“I would ensure that no state can pass laws that chip away at access to reproductive care or criminalize reproductive health care providers,” she explained. “Federal law should supersede harmful state laws that take away women’s reproductive freedom.”
Gillibrand said that she believed that access to abortion is a “constitutionally recognized right.”
“I’m not afraid to follow through and guarantee it,” she said. “With the power of the federal government, this is about the fundamental question of whether we value women in this country and whether we see them as humans who are able to make their own decision.”
She added: “And any Democrat who expects to win the presidency must answer definitively where they stand on this issue.”
Gillibrand’s comments come amid a heated national debate over Alabama’s new state law, which bans nearly all abortion procedures.
Alabama Gov. Kay Ivey, a Republican, signed the bill into law Wednesday. The law makes nearly all abortions in the state illegal and makes performing one a felony, punishable by up to 99 years or life in prison unless the mother’s health is at risk, with no exceptions for women impregnated by rape or incest.
Republican state Rep. Terri Collins, who sponsored the bill, aimed to reignite the debate surrounding Roe v. Wade, the 1973 Supreme Court decision that legalized abortions across the nation, and to push justices to overturn the landmark ruling.
Currently, the law will not be enforceable because of the current Supreme Court ruling that makes abortions a constitutional right. Ivey acknowledged this when she signed the bill into law.
"In all meaningful respects, this bill closely resembles an abortion ban that has been a part of Alabama law for well over 100 years. As today’s bill itself recognizes, that longstanding abortion law has been rendered unenforceable as a result of the U.S. Supreme Court decision in Roe v. Wade,” she said.
"No matter one’s personal view on abortion, we can all recognize that, at least for the short term, this bill may similarly be unenforceable. As citizens of this great country, we must always respect the authority of the U.S. Supreme Court even when we disagree with their decisions,” she continued.
“Many Americans, myself included, disagreed when Roe v. Wade was handed down in 1973. The sponsors of this bill believe that it is time, once again, for the U.S. Supreme Court to revisit this important matter, and they believe this act may bring about the best opportunity for this to occur."
A Fox News poll conducted in February tallied voters' familiarity with Roe v. Wade, and 48 percent said they are “extremely” or “very” familiar with the ruling while the exact same number are “somewhat” or “not at all” familiar with the case.
Moreover, 57 percent of voters say the Supreme Court should let the 46-year old ruling stand; that number jumps to 68 percent among those who are familiar with the case.
Meanwhile, on Capitol Hill on Thursday, House Republican Leader Kevin McCarthy, R-Calif., said the Alabama law “goes further than I believe.”
McCarthy said he believed in “exceptions for rape, incest and life of the mother,” but wouldn’t go as far as to take a stand on whether the Supreme Court should strike down the Alabama law if it were to reach the high court.
But Alabama is not the only state in the nation with an abortion law as restrictive as the one passed this week. In March, Mississippi's Republican Gov. Phil Bryant signed a bill that outlaws most abortion procedures once a fetal heartbeat can be detected. The law makes it illegal for a woman to have an abortion after approximately six weeks of pregnancy.
At the time, the Center for Reproductive Rights called the bill “blatantly unconstitutional,” and has threatened to sue the state to block the law from going into effect on July 1.
“The term ‘heartbeat bill’ is a manipulative misnomer. These bills actually rob women of their choice to have an #abortion before they even know they’re pregnant,” the group tweeted in March.
Also in Ohio, the legislature proposed a similar measure during former Gov. John Kasich’s term. Kasich vetoed the proposal, but the new Republican governor, Mike DeWine, has indicated he will support the bill. The measure passed the Ohio Senate last week.
Kentucky passed a similar bill last month, and Iowa Gov. Kim Reynolds, last spring signed a 'heartbeat' bill into law.
Meanwhile, states like New York, Virginia, New Mexico, Massachusetts, Rhode Island and Washington have either passed new laws expanding abortion access, or are moving toward stripping old laws from the books that limit abortions.
In New York, non-doctors are now allowed to conduct abortions and the procedure can be done until the mother's due date if the woman's health is endangered or if the fetus is not viable. The previous law only allowed abortions after 24 weeks of pregnancy if a woman's life was at risk.
Fox News’ Ben Florence, Vandana Rambaran, Victoria Balara, and The Associated Press contributed to this report.