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Charlotte Lozier Institute

Phone: 202-223-8073
Fax: 571-312-0544

2776 S. Arlington Mill Dr.
#803
Arlington, VA 22206

Life & the LawMaternal & Public Health

The Women’s Health Protection Act of 2023: Attacking the Health and Freedom of Women

This is Issue 94 of the On Point Series.

 

On March 8, 2023, Senator Tammy Baldwin (D-WI) introduced the latest version of the pro-abortion “Women’s Health Protection Act” (S. 701).[1] She was joined by 48 co-sponsors: 45 Democrats, including freshmen Sens. John Fetterman (PA) and Peter Welch (VT), and 3 Independents who caucus with Democrats, Kyrsten Sinema (AZ), Bernie Sanders (VT), and Angus King (ME). At this writing the proposal is poised for a Senate vote.

 

An earlier version of this bill, H.R. 3755, was reviewed by this author after it was narrowly approved by the House of Representatives in September 2021.[2] That version failed in the Senate in 2022, when an effort to invoke cloture received only 46 of the 60 needed votes. This article will review why such proposals are being offered, then analyze what is new in S. 701 to make it the most extreme abortion proposal ever considered by Congress.

 

The Reason for the Women’s Health Protection Act

 

When H.R. 3755 passed the House, National Public Radio announced: “The House Passes A Bill Meant to Counter Texas-Style Abortion Bans.”[3] Later versions in 2022 were promoted as efforts to “codify Roe,” responding to the U.S. Supreme Court’s 2022 Dobbs decision reversing its 1973 Roe v. Wade decision. Both claims are extremely misleading.

 

In fact, the “Women’s Health Protection Act” (WHPA) has been introduced in every Congress since 2013,[4] for a different reason: The pro-abortion movement’s disdain for Roe itself — or rather, for Roe’s failure to enshrine abortion as an entitlement, as “essential health care” deserving government endorsement as a public good.

 

In 1973, Roe invalidated laws against abortion in all 50 states by claiming a constitutional right to choose abortion for any reason before viability (when a child may survive outside the womb if delivered) – and even after that point, if an abortion practitioner deems it necessary to preserve a woman’s life or “health.” In the companion case Doe v. Bolton, the court described “health” as encompassing “all factors –physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.”[5]

 

Increasingly, however, abortion advocates have seen Roe as deplorably inadequate. It did not invalidate laws restricting public abortion funding, or those protecting women’s health by requiring that abortion be performed by a licensed physician or in safe facilities. It generally allowed regulation of abortion to protect informed consent, the rights of parents when unemancipated minors seek abortions, and the consciences of taxpayers, physicians, and nurses who object to abortion.

 

The abortion movement’s shift to a more extreme position was highlighted in 2014, when it was reported that Planned Parenthood had stopped calling its agenda “pro-choice.”[6] The ostensible reason was that this theme was not compelling to a new generation of women. The reality is that “choice” is no longer so important to the organizations themselves.  For many years they have vigorously opposed conscience rights for health care providers who choose not to provide abortions. Now they seem more devoted to promoting and maximizing abortions than to allowing women to choose whether or not to undergo them, as discussed in this paper. The WHPA, embodying that ideological shift, was endorsed by dozens of pro-abortion organizations in 2019, years before the Texas law was enacted or the Dobbs decision was issued.[7]

 

Even Roe treated abortion as a conflict of interests between two parties, the pregnant woman and the child she carries, though it claimed that the woman’s choice of abortion generally must prevail.[8] In the WHPA, the unborn child simply does not exist. H.R. 3755’s Findings described abortion as “medically comparable” to procedures like vasectomy or colonoscopy.[9] Even the words “embryo” and “fetus” are absent from H.R. 3755. “Pregnancy” is defined as “the period of the human reproductive process beginning with the implantation of a fertilized egg,” an absurd, unscientific way to describe a rapidly developing embryonic human that may be made up of hundreds of cells.[10] The bill’s definition of “viability” does refer to “a reasonable likelihood of sustained fetal survival outside the uterus” – to describe a newborn infant.[11]

 

The 2021 bill prioritized abortion “access” over women’s health by its treatment of safety regulations for abortion clinics. These safeguards may make abortions less convenient or readily available, and so must be invalidated even if they significantly advance patients’ health and safety — unless supporters can “establish, by clear and convincing evidence,” that this goal “cannot be advanced by a less restrictive alternative measure or action.”[12] This is a strict evidentiary standard. It is difficult to see how the burden of proof could be met without first enacting the law more friendly to abortion clinics, and watching as women are harmed or killed.

 

What is New in S. 701?

 

701 retains such features, but also achieves something that may not have seemed possible: Taking this agenda to further extremes.

 

I.  The Drive to Maximize Abortions Overrides Women’s Health

 

H.R. 3755 had already lowered the medical qualifications for abortion practitioners, by listing not only a physician but a “certified nurse-midwife, nurse practitioner, or physician assistant” among the “health care providers” who can provide abortions. None of these practitioners even needed to be certified or licensed under state law, if they “would be so licensed or certified but for their past, present, or potential provision of abortion services permitted” by the bill.[13]  This retroactively rehabilitated “back-alley” practitioners who lost their licenses due to abortions that were illegal, ignored informed consent requirements, violated parental rights, etc.

 

In S. 701, abortion activities that H.R. 3755 described as “permitted” are declared to be affirmatively “protected” by federal law.[14] Among the practical consequences:

 

First, on safety regulations for clinics, S. 701 ratchets up the legal standard further: The “alternative” means of regulation that must be preferred is one that simply “does not interfere with the right” to provide or obtain abortions, a right the bill treats as unlimited. Merely being “less restrictive” of abortion is not enough.[15]

 

Second, in a new section on “Protection of the Right to Travel,” a person’s right to travel across state lines to obtain abortions (and the right of a person helping to obtain them) is declared a “fundamental right,” protected by the Constitution. S. 701’s purpose clause also declares that Congress’s authority to guarantee access to abortion is based on the Interstate Commerce Clause and other constitutional provisions.[16] It is difficult to understand the need for this when, under this bill, every state must have the same sweeping protection for the right to abortion, unless it is designed to facilitate travel to the state with the most abortion-friendly regulations (or lack of regulations) for abortion centers.

 

Third, S. 701 shows increased zeal for invalidating abortion limitations, by authorizing lawsuits against them by the Attorney General or private parties even before they are implemented or enforced.[17] In such a case, of course, there will be no opportunity to show that the limitation would have saved women’s lives.

 

II. Erasing References to Women and Their Choice

 

Aside from the bill title itself, the older H.R. 3755 referred to “women” 13 times. Twelve of these were in its Findings, which attacked the pro-life position as discriminating against women — while also declaring “that access to abortion services is critical to the health of every person capable of becoming pregnant,” to include biological women who identify otherwise.[18] The bill stated that one of its purposes was “to promote access to abortion services and women’s ability to participate equally in the economic and social life of the United States.”[19]

 

S. 701 eliminates the entire Findings section. That leaves this 18-page bill with only one mention of women aside from its title, in its version of the purpose clause. Even that one sentence is changed to say that the bill’s purpose is “to promote access to abortion services and thereby protect women’s ability to participate equally,” etc.[20] The bill assumes that abortion access serves this ability, so it can proceed to concentrate solely on maximizing abortions.

 

S. 701 never mentions women again. It mentions the “pregnant patient” once, when denying the authority of any government official to diminish “a person’s ability to obtain or provide abortion services” at any stage when the abortion provider thinks “continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”[21]

 

What S. 701 does repeatedly declare is every “person’s” right to seek and obtain an abortion, a right that overrides virtually all other considerations. Nowhere does it say that the “person” need be the pregnant patient, and clearly that is not the case in the quote just cited. The person sexually abusing a child, the pimp or sex trafficker seeking to “obtain” abortions for the women he exploits, the coercive boyfriend or abusive husband pressuring a woman to undergo an abortion — they may have this right as well.

 

If that conclusion seems too extreme to be true, consider four additional factors.

 

First, one might assume that S. 701 would prevent this by ensuring that it is the woman’s own free choice that prevails. That assumption would be groundless. Entirely absent from the bill are words like “free,” “choice,” “choose,” “voluntary,” or “consent” (whether informed or not). The word “freedom” occurs only once, when citing the Religious Freedom Restoration Act – in order to include it among the laws S. 701 will nullify, so the federal government can force even religious believers and their health care institutions to help provide abortions.

 

Second, S. 701 protects an equally absolute right for “any individual” to “assist or support a patient seeking abortion,” and says that “a person has a right under this Act to assist another person to obtain” abortion services.[22] As noted above, this includes the “fundamental right” to assist travel to another State. One obvious application here is to the rapist or abuser who “assists” an unemancipated minor in evading her parents or her home state’s law on parental rights. Past Congresses have considered federal legislation to stop such interstate travel with minors.[23] S. 701 would empower it instead.

 

Third, the bill specifies that no law may require a patient to disclose her reason for seeking an abortion, and no law may limit abortions based on any reason that is offered or perceived. If, for example, a woman says she is having an abortion because a sex trafficker wants to get her back to work, or her boyfriend threatens to kill her otherwise, the abortion must be permitted.[24]

 

Fourth, any federal, state, or local “government official” that may try to limit ready access to abortion contrary to this Act can be sued by “any individual or entity adversely affected by” that action, “including any person or health care provider.”  The term “government official” includes any private person permitted to file suit to implement a law limiting abortion — for example, under a law like that of Texas.[25] Any man who benefits from sexually exploiting women or girls, or who simply refuses to accept any parental responsibility, could be “adversely affected” by abortion limits. Parents who go to court to protect their minor daughter from being trafficked across state lines for an abortion could be sued by the trafficker — and bankrupted by court costs and attorneys’ fees.[26]

 

III. Promoting “Self-Managed” Abortions by Any Means

 

The Biden administration has sought to ensure maximum nationwide access to chemical abortion using drugs like mifepristone.[27] H.R. 3755 advanced this goal by prohibiting limits on use of telemedicine for abortions, as well as requirements for “medically unnecessary in-person visits” to a health care provider prior to an abortion.[28] Now, S. 701 broadens that agenda in several ways.

 

First, it adds “pharmacy” and “pharmacist” to the list of “health care providers” with their own right to provide abortions.[29]

 

Second, it invalidates any “limitation on a health care provider’s ability to prescribe or dispense drugs that could be used for reproductive health purposes based on current evidence-based regimens or the provider’s good-faith medical judgment, or a limitation on a patient’s ability to receive or use such drugs,” unless the limitation applies to drugs in general.[30] It is especially irresponsible, in light of the risks of such drugs, that the provider is allowed to substitute his or her “good-faith” guess in place of the medical evidence – and that this broad right includes easy access to any drug, for any purpose, that could also be used for “reproductive health purposes.”[31]

 

Third, among the limitations forbidden by the Act is “a prohibition or restriction on a particular abortion procedure or method, or a prohibition on providing or obtaining such abortions.”[32] Adding “or method” and the rest of this sentence seems to clarify that the abortion need not involve a medical procedure but can be “obtained” using any method.

 

Taken together, these provisions advance another goal of the dozens of pro-abortion groups endorsing the 2019 Blueprint: Promoting “self-managed” abortions, which “may include the use of medication abortion pills (mifepristone and/or misoprostol), traditional herbs, or other means to end a pregnancy.”[33]

 

In short, a movement that once claimed physicians must be free to provide abortions in order to prevent self-induced or “coat hanger” abortions is now working to ensure access to the latter.

 

IV. Broadening Access to Abortion Up to the Moment of Birth

 

Past versions of the WHPA such as H.R. 3755 allowed for abortions after viability, the point when a child can survive outside the womb, whenever necessary to preserve the “life or health” of “the person who is pregnant.” The determination of what encompasses “health,” whether a given child is viable, and when an abortion is “necessary” for health were apparently left to “the good-faith medical judgment of the treating health care professional” (the abortion practitioner).

 

How could this be broader? For an answer, consider three new provisions of S. 701.

 

First, for any abortion after viability that the abortionist claims is needed for “health,” there can be no limitation on or regulation of abortion that the bill forbids in the case of an earlier abortion. Safety regulations, informed consent provisions, parental notice laws when a minor is involved, conscience protections for health care facilities – in fact, any measures that may delay, reduce access to, or raise the cost of an abortion in the sixth through ninth month of pregnancy – can have suit filed against them by the U.S. Attorney General and by any person (including any abortion provider) who claims to be adversely affected by them.[34]

 

Second, H.R. 3755 sought to invalidate any law that would prohibit abortion after viability when an abortion practitioner judges that “continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.” S. 701 is broader, denying any authorization for a government official to “interfere with, diminish, or negatively affect a person’s ability to obtain or provide abortion services” in these circumstances.[35] Note that both bills protect a decision to perform an abortion up to the moment of birth: A common reason why “continuation of the pregnancy” may risk a mother’s health is that she is already at full term and continuing the pregnancy past her due date may have risks. In that situation, when it is time to deliver a live, healthy baby, no government official may “diminish” or “negatively affect” a decision by a “health care provider” (as defined by the bill) to ensure the child’s death instead.[36]

 

Third, S. 701 adds: “A State may provide additional circumstances under which post-viability abortions are permitted under this paragraph.” Sec. 4 (a)(2)(B). It is difficult to imagine what could be “additional” to the sweeping policy this bill requires in all 50 states. One law that could qualify would be one authorizing abortions that even the abortionist cannot claim would serve the patient’s wellbeing.[37]

 

Conclusion

 

A final note: These expansions of a federal “right” to provide, obtain, and promote abortions, at any stage and for any reason, are governed by two rules of interpretation also found in past versions of the WHPA. First, this Act will “supersede any inconsistent Federal or State law, and the implementation of such law, whether statutory, common law, or otherwise, and whether adopted prior to or after the date of enactment of this Act.” Even a federal law enacted later is superseded, unless it “explicitly excludes” that outcome by referencing this Act.[38] Second, courts must “liberally construe the provisions of this Act to effectuate the purposes of the Act.”[39] If any word or phrase in S. 701 can be construed as broadly as described above, it must be so construed.

 

Previous versions of the egregiously misnamed “Women’s Health Protection Act” were the most sweeping federal proposals in history for endorsing abortion as a positive good. These must now give way to S. 701, which treats those bills as insufficiently broad in ignoring women’s autonomy, endangering their health, consigning them to dangerous abortions induced by themselves or unqualified practitioners, and promoting the destruction of full-term children waiting to be born.

 

Richard M. Doerflinger, M.A. is an associate scholar with the Charlotte Lozier Institute.


[1] S. 701, Women’s Health Protection Act of 2023 (118th Congress).

[2] R. Doerflinger, “Lies, Damn Lies, and the Women’s Health Protection Act,” On Point Issue 69 (Charlotte Lozier Institute), October 2021. See H.R. 3755, Women’s Health Protection Act of 2021 (117th Congress).

[3] B. Sprunt, “The House Passes a Bill Meant to Counter Texas-Style Abortion Bans,” National Public Radio, September 24, 2021.

[4] See S. 1696 and H.R. 3471, Women’s Health Protection Act of  2013 (113th Congress). In all, thirteen “Women’s Health Protection Act” bills have been introduced in the House or Senate in the last decade.

[5] Roe v. Wade, 410 U.S. 113, 164 (1973); Doe v. Bolton, 410 U.S. 179, 192 (1973).

[6] J. Calmes, “Advocates Shun ‘Pro-Choice’ to Expand Message,” The New York Times, July 29, 2014.

[7] See The Blueprint for Sexual and Reproductive Health, Rights, and Justice (July 2019), p. 33. Signing the document were over 90 organizations including Planned Parenthood Federation of America, National Abortion Federation, American Civil Liberties Union, and NARAL Pro-Choice America.

[8] Roe v. Wade, 410 U.S. at 159.

[9] H.R. 3755, Sec. 2 (a)(10).

[10] Id., Sec. 3 (5) (emphasis added).

[11] Id., Sec. 3 (7) (emphasis added).

[12] Id., Sec. 4 (d) (emphasis added).

[13] Id., Sec. 3 (3) (emphasis added).

[14] Compare S. 701, Sec. 3 (3)(B)(ii) and heading of Sec. 4, with the same sections of H.R. 3755.

[15] S. 701, Sec. 4 (d).

[16] Id., Sec. 5; Sec. 2 (4).

[17] Id., Sec. 8(a) and (b).

[18] H.R. 3755, Sec. 2 (a)(7) and (a)(8).

[19] Id., Sec. 2 (a)(1).

[20] S. 701, Sec. 2 (2) (emphasis added).

[21] Id., Sec. 7 (b).

[22] Id., Sec. 4 (a)(1)(D) and Sec. 5. The first of these is expanded to cover post-viability abortions for (undefined) “health” by Sec. 4 (a)(2)(C).

[23] These “Child Custody Protection Act” or “Child Interstate Abortion Notification Act” bills have been introduced in multiple Congresses since 1998. In 2023, bills with the latter title were introduced as H.R. 792 and S. 78.

[24] S. 701, Sec. 4 (a)(1)(J). This is expanded to cover post-viability abortions for (undefined) “health” by Sec. 4 (a)(2)(C).

[25] Id., Secs. 8 (b) and 7 (c).

[26] Id., Sec. 8 (e).

[27] See President Joseph R. Biden, Jr., “Memorandum on Further Efforts to Protect Access to Reproductive Healthcare Services,” The White House, Jan. 22, 2023. See also White House release, “FACTSHEET: The Biden-Harris Administration’s Record on Protecting Access to Medication Abortion,” April 12, 2023.

[28] H.R. 3755, Secs. 4 (a)(5) and 4 (a)(7).

[29] S. 701, Sec. 3 (3).

[30] Id., Sec. 4 (a)(1)(B) (emphasis added to highlight text not found in H.R. 3755).

[31] On the evidence regarding risks to women from the current federal policy on chemical abortions, see “Brief for Amicus Curiae Charlotte Lozier Institute in Support of Plaintiffs’ Motion for a Preliminary Injunction,” in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (U.S. District Court for the Northern District of Texas, Civil Action No. 2:22-CV-00223-Z), filed Feb. 13, 2023.

[32] S. 701, Sec. 4 (a)(1)(A) (emphasis added to highlight text not found in H.R. 3755). The only exception is that, like past versions of the WHPA, S. 701 leaves in place the federal ban on the procedure known as partial-birth abortion. Sec. 6 (b)(3).

[33] See Blueprint, note 7 supra, p. 38 (emphasis added).

[34] S. 701, Sec. 4 (a)(2)(C) and Sec. 8.

[35] Compare S. 701, Sec. 7 (b), with H.R. 3755, Sec. 4 (a)(9). Sec. 7 (b) of H.R. 3755 does not explicitly mention post-viability abortion. It says the Act should not be construed to limit or adversely affect the separate “constitutional” right to “terminate a pregnancy” – a provision rendered meaningless by the Dobbs decision. After viability, of course, the common method for terminating a pregnancy is by live birth. Sec. 7 (b) of S. 701 explicitly speaks of protecting “abortion services” after viability instead.

[36] In circumstances of a risk to the mother’s life, medical interventions to separate a mother and her unborn child, such as induction or C-section delivery, give the opportunity for both lives to be cared for and can generally be performed more quickly than a D&E abortion, which may require several days for cervical preparation prior to surgery. See I. Skop, “Fact Sheet: Medical Indications for Separating a Mother and Her Unborn Child,” Charlotte Lozier Institute (May 2022). Available at: https://lozierinstitute.org/fact-sheet-medical-indications-for-separating-a-mother-and-her-unborn-child/.

[37] This policy’s threat to women’s and girls’ lives is clear, as abortion poses a greater risk the later in gestation it is performed.  “In the United States, the death rate from legal induced abortion performed at 18 weeks gestation is more than double that observed for women experiencing vaginal delivery.” P. Marmion and I. Skop, “Induced Abortion and the Increased Risk of Maternal Mortality,” The Linacre Quarterly 87.3 (August 2020) 302-310 at 302.

[38] S. 701, Sec.6 (a). Compare H.R. 3755, Sec. 5 (a).

[39] S. 701, Sec. 7 (a) (emphasis added), headed “Liberal Construction by Courts” to eliminate any trace of doubt. Compare H.R. 3755, Sec. 7 (a), headed “In General.”

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