So-called “Women’s Health Protection Act” defeated again in the Senate

By Jennifer Popik, J.D. Director of Federal Legislation

Late on Wednesday May 11, all Senate Republicans, joined by one Democrat, Senator Joe Manchin, defeated a motion to invoke cloture (end debate) on the motion to proceed to H.R. 4132, the Women’s Health Protection Act better described as the Abortion on Demand Until Birth Act. The vote was 49-51.

This extremist legislation, which needed 60 votes to advance, failed to even garner a majority of U.S. Senators.  Nearly identical legislation was voted down by the Senate in March. It would invalidate even laws upheld by the Supreme Court in the time since Roe.

The vote came a little over a week after Justice Samuel Alito’s draft opinion calling for Roe and Casey to be overturned was leaked to the press. The Democrat-controlled U.S. Senate chose to again take a vote on a bill they claim will “codify” Roe v. Wade. The bill would go far beyond codifying Roe. While Democrats claimed to be pushing the Women’s Health Protection Act because of Roe v. Wade’s potentially demise, this piece of legislation has been trotted out in various forms for decades.

Background

On May 9th, 2022, Majority Leader Schumer delivered floor remarks after filing cloture to set up a vote on S. 4132.  He said in part,

It will be one of the most important questions this chamber confronts in decades, because for the first time in fifty years, women in America face the real possibility of living in a world where the protections of Roe v. Wade are a thing of the past. It will set up a situation where our children, women children, female children have less rights than their grandparents, something that is so un-American, taking away rights, stepping backward on rights in such a dramatic way.

An earlier version of the legislation, known as the Freedom of Choice Act (FOCA) was pushed by pro-abortion forces beginning in the late 1980s, when they feared that the Supreme Court was preparing to overturn Roe v. Wade. When President Clinton, a FOCA supporter, took office in January 1993, Planned Parenthood predicted that the FOCA would be law within six months. 

But the bill died after an education and lobbying campaign led by NRLC persuaded many pro-Roe lawmakers that the bill went beyond Roe and would strike down many state laws that had broad support.

The original FOCA faded from view after Republicans took control of the House of Representatives in the 1994 election.  President Obama endorsed this radical legislation during his 2008 run for president, but was never successful in attracting all Democrats, nor Republican, support.  It has been introduced in various forms over the years since. 

During the fight over the earlier versions, proponents of the bill often tried to deny effects that they have already admitted with respect to the new bill. This included the invalidation of all restrictions on government funding of abortion.

However, now the embrace of running roughshod over even the most common-sense state abortion restriction is complete.  49 of 50 current Democrat Senators voted for the “Women’s Health Protection Act”  and 218 Democrat House members voted for the measure (see here).

S. 4132 would enshrine into law abortion-on-demand and would overturn existing pro-life laws and prevent new protective laws from being enacted at the state and federal levels. This bill seeks to strip away from elected lawmakers the ability to provide even the most minimal protections for unborn children, at any stage of their pre-natal development. 

S. 4132 would invalidate nearly all existing state limitations on abortion and prohibit states from adopting new limitations in the future, including various types of laws specifically upheld as constitutionally permissible by the U.S. Supreme Court. 

S. 4132 would invalidate most previously enacted federal limits on abortion, including federal conscience protection laws and most, if not all, limits on government funding of abortion.

Among the protective laws that the bill would nullify:

*Requirements to provide women seeking abortion with specific information on their unborn child and on alternatives to abortion;

*Laws providing reflection periods (waiting periods);

*Laws allowing medical professionals to opt-out of providing abortions;

*Laws limiting the performance of abortions to licensed physicians;

*Bans on elective abortion after 20 weeks when an unborn child is capable of feeling pain;

*Bans on the use of abortion as a method of sex selection. Anti-sex selection laws generally have broad public support in the states in which they are enacted, including support from substantial majorities of women.

While this vote fell far short of the 60 votes needed, it is only due to the fact that the filibuster remains intact. It is more critical now than ever to hold those voting for this radical legislation accountable at the ballot box this fall.  

Should Democrats gain seats in the Senate, it is extremely likely that they would eliminate the filibuster and only require simple majority votes to pass sweeping legislation like the “Women’s Health Protection Act.”