Abortion vote in Senate today

Today the Senate votes on a cloture motion on a bill to establish a federal abortion code. Other than that, both sides of the abortion debate have sown much confusion. Herewith an attempt to set the record straight.

Two versions of the abortion code bill

Two versions of the “Women’s Health Protection Act” are floating around in Congress today. The first, HR 3755, passed the House on September 21 of last year. It came to the Senate in February of this year and failed of cloture, 46-48.

The Second, S 4132, has everything in the first bill except the Findings section. Senator Richard Blumenthal (D-Conn.) introduced it on May 3, the day after the Roe v. Wade leak. Why Senator Blumenthal stripped the findings out of the bill, neither he nor anyone else has explained. And because the two bills are not exactly identical, invoking cloture on S 4132 and then passing it might still require it to go through the House of Representatives. Either that, or Senate and House would call a conference and agree to ditch the Findings.

Senator Blumenthal and his Democratic colleagues assert that this bill would codify the regime in Roe v. Wade. Senator Mitch McConnell (R-Ky.) says the bill would go much further and legislate abortion on demand, from conception to birth.

In the meantime, we’ve seen:

• Picketing in front of the houses of Court members,
• The Speaker of the House applauding such acts,
• A firebombing of a pro-life office in Madison, Wisconsin,
• A claim-of-responsibility for that act that threatens more of the same,
• The Attorney General of Virginia having someone fire a bullet through his office window, and
• Leftist activists calling for the abolition of the Court itself.

What does the abortion code bill really do?

In fact, the abortion code bill does give a nod to the viability standard in Roe v. Wade. The problem for Senator McConnell and others is that it gives a rubber standard for when States may respect it. Under either version of this bill, a doctor may abort a viable unborn child:

when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.

As ever, the devil lies in the details. What constitutes the health of the mother? What risk is acceptable or unacceptable? These bills don’t say.

As an aside: why won’t they just say mother? Believe it or not, the Findings section of HR 3755 refers to “every person capable of becoming pregnant.” And that explicitly includes:

cisgender women, transgender men, non-binary individuals, those who identify with a different gender, and others

No wonder Senator Blumenthal ditched the Findings. He probably thought that’s why HR 3755 didn’t get cloture the first time.

Veering into unconstitutional territory

But at the bottom, this bill comes very close to invalidating the Constitution itself. First, in a direct swipe at the Texas Heartbeat Act, it defines any private person given standing to sue an abortion provider as a State actor, who would be held liable under Federal law. Then it says the Tenth and Eleventh Amendments won’t apply here.

The Tenth Amendment says that the States have reserved powers. One of these is the power to define and punish murder or manslaughter. The only murders subject to Federal investigation are those that happen on Federal installations, or in Washington, D.C. itself. That comes from Article I Section 8 Clause 17, the “Exclusive Legislation Clause.”

Under the Eleventh Amendment, citizens of one State may not sue another State. So now the drafters of this Act presume to say that citizens of one State may indeed sue another State for prohibiting or restricting abortion. The Enforcement section specifically grants standing to anyone “adversely affected by a violation of this Act.” That doesn’t say what the “adverse effect” might be.

Other points of confusion

This wouldn’t be the first time the abortion side has deliberately sown confusion. Recall again the text of the draft opinion:

The Solicitor General of the United States actually said that if Roe goes, so go things like:

• Lawrence v. Texas (forbidding the criminalization of homosexual acts),
• Loving v. Virginia (forbidding “miscegenation” laws), and
• Griswold v. Connecticut (permitting married couples to get birth control pills if they want).

In fact, Justice Alito addressed all of that. He never said those cases couldn’t stand. He did say those cases could not support Roe, either when that decision came down or today. Justice Alito said that the Roe court tried to lay a foundation for their decision in a right to privacy that proceeded from various parts of the Constitution. And then he said that abortion is categorically different from intimate acts, interracial marriage, or home birth control. These practices don’t destroy life, but abortion does.

And yes, Senator McConnell has said lately that Congress could ban abortion nationwide. But that would not be simple. It probably would require trying again with the Human Life Amendment to the Constitution, which would take two-thirds of both Houses and three-fourths of the several States.

Assuming Roe falls, the battle now goes to the States, as CNAV has said before. It also goes to the hearts and minds of the people, in current generations – and future.