Why haven't the Democrats passed a generalised law allowing abortion?
September 3, 2021 11:51 AM   Subscribe

Why haven't the Democrats passed a generalised law allowing abortions up to, say, 24 weeks?

This is probably a very naive question from a foreigner but, given that Roe vs Wade has been in existence nearly fifty year, why haven't the Democrats passed a generalised law allowing abortions up to, say, 24 weeks? They have had a majority in both houses at least some of the time (e.g. now) and must have realised that Roe vs Wade was liable to challenge and that it has, in fact been weakened so couldn't a Federal law have solved all problems (.e.g. the recent Texan law)? In the UK, for example we have the Abortion Act 1967 and other countries have similar laws.
posted by TheRaven to Law & Government (21 answers total) 3 users marked this as a favorite
I don’t think there is federal jurisdiction to enact a law like this, it’s up to the individual states. Not 100% sure though.
posted by katypickle at 11:59 AM on September 3, 2021

The 10th Amendment makes things like that hard. It's arguably possible, but doing that would have been very difficult and have very little reward for lawmakers.

While abortion has widespread support, it fades when you get into specifics, and the support is totally absent in the Republican party. You can't assume all Democrats would support it and all Republicans would oppose it. Getting to 60 out of 100 votes in the Senate would be a herculean task. If anyone did manage it, there is a good chance the Supreme Court would strike it down anyway. And many lawmakers would be scared of it being used against them for re-election. The upside would be pretty slim. There is already a constitutional right to abortion.

It would be great to have that backup right about now! But the incentives have always been aligned against something like that happening. That's why so many battles in the US do go through the courts instead of the legislature (like same-sex marriage, voting rights, etc).
posted by Garm at 12:12 PM on September 3, 2021 [3 favorites]

Because they don't care. They've been lip-servicing codification since the primaries at least, and Nancy Pelosi said they might fuck around and codify after the house recess (they won't).

How codification would work - pertinent details: Codifying Roe v. Wade would take the question of safe and legal abortion out of the Supreme Court’s hands by passing legislation in Congress that guarantees women in every state the right to unfettered access to abortion care. This would protect the right to choose even in the event that Roe v. Wade is overturned.

But as you see in the article, it's been abandoned before, and of course I'm pretty sure it's only useful until the next election.
posted by Lyn Never at 12:13 PM on September 3, 2021 [15 favorites]

Garm is right. It is a combination of: (1) unclear division of authority between state and federal legislatures on the topic; and (2) lack of enough political will to overcome the many choke-points in the US legislative system. It's much easier to stop/invalidate laws in the US federal system than pass them.
posted by Mid at 12:15 PM on September 3, 2021 [4 favorites]

I don’t think there is federal jurisdiction to enact a law like this, it’s up to the individual states.

This is about right.

TheRaven: the thing to understand about Roe V. Wade is that it is only sort of about abortion. It strictly is more of a privacy issue - the specific decision was that women have a right to choose whether or not to have an abortion "without excessive government restriction". Even then SCOTUS stated that the unborn child had some rights, and was of the opinion that the rights of the unborn should also be protected depending on what stage of the pregnancy you were at.

So at the end of the day, they came up with a different set of rulings for each of the trimesters:

1. During the first trimester, the Court ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards, such as requiring abortions to be performed by licensed physicians.

2. During the second trimester, the Court ruled that states could pass regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health.

3. During the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.

But the key thing to note there is that they were ruling not on abortion itself, but rather on laws a given state could pass about abortion. There's a pattern in the United States of certain rights being left up to state governments to decide - it takes a lot for something to become a Federal law, and sometimes the Federal leadership decides it's easier to let the states decide for themselves what the rules are within their own state. You may not recall this, but before the Supreme Court ruled that same-sex marriage was legal throughout the United States, we had a number of states gradually declare that it was legal within that state. It was only when a majority of those states legalized same-sex marriage that the Supreme Court finally ruled that "you know what, this should be a Federal law."

Which leads us back to your original question - most likely the reason that the Democrats haven't tried to introduce a Federal bill about this is because it would be almost guaranteed to die a quick death. Abortion is such a hot-button issue in this country that "hell with it, let the states decide how they want to do things" is actually a compromise.
posted by EmpressCallipygos at 12:17 PM on September 3, 2021 [8 favorites]

Most congressional (and presidential) Democrats have been pretty lukewarm in their support for reproductive rights. See, e.g., Bill Clinton's "safe, legal, and rare" approach to abortion, rather than unapologetic support for fully-funded abortion at any stage for any reason. Codification is in the party platform now, but so are a lot of nice ideas that many elected Democrats don't actually support.

The single biggest reason, though, is the filibuster. Such a bill just isn't going anywhere, not when there are many anti-choice Democrats in the Senate and 100% anti-choice Republicans. Even blowing up the filibuster or attaching it to a shutdown-inducing budget bill wouldn't work when not even a majority of Senate Democrats actually support it.
posted by jedicus at 12:22 PM on September 3, 2021 [3 favorites]

The answer to "Why haven't the Democrats just..." is always:
1. their hands are ACTUALLY tied because our system is a shambling mess that barely works
or 2. They're just pretending their hands are tied because they don't want to do whatever it is for their own reasons -
A. they think their donors will cut them off & they might be right
B. they aren't personally affected by the issue/they don't actually understand the issue
C. they don't like each other & don't want to work together
posted by bleep at 12:22 PM on September 3, 2021 [10 favorites]

For what it's worth, House Democrats are now planning legislation to codify Roe v. Wade. Whether this is a genuine attempt or a cynical ploy to capitalize on the anger generated by the bill is left as an exercise for the reader.
posted by Rock Steady at 12:28 PM on September 3, 2021 [1 favorite]

I don’t think there is federal jurisdiction to enact a law like this, it’s up to the individual states. Not 100% sure though

There are lots of way to do it within the US federal system. One of the simplest would be a kind of "reverse Hyde Amendment" whereby states would be denied (some portion of) Medicare funds unless they permit abortion. This would be similar to how the federal government forced states to raise the drinking age to 21 on pain of losing federal highway funding, an approach that the Supreme Court upheld in South Dakota v. Dole.
posted by jedicus at 12:30 PM on September 3, 2021 [4 favorites]

It also might help to know some details about this particular situation.

There have been other states passing strict regulations on abortion in the past, but these regulations often got killed by the Supreme Court for being in violation of Roe V. Wade. In this particular case, the Supreme Court stated that while the people opposed to the law "raised serious constitutional questions" about it, the Court's decision was that there still didn't seem to be any reason that the law couldn't go ahead.

Part of why things shook down this way may also be in part because of how cases get to the Supreme Court. The Court doesn't rule on a law itself just sitting in a law book - there has to be some people involved, and the Court rules on the law as it is manifested by those people. So they weren't technically ruling on "is this law bullshit", they were ruling on "Can these people be sued because this law is bullshit". And in a sense, their decision was more like "this law actually may be kinda bullshit a little, but there's enough not-bullshit that we can't let these people get sued."

The good news is that another case could come before the court with different people and a much clearer case of "okay, this case is a much better example of why this law is bullshit, how about now?" And the court could rule differently.

But that kind of tiny, hyper-specific detailed case is how these laws get ruled on.
posted by EmpressCallipygos at 12:32 PM on September 3, 2021 [3 favorites]

I think the bottom line is they do not have the votes. I think they could overcome the legalities, but need the votes.
posted by AugustWest at 12:38 PM on September 3, 2021 [5 favorites]

I suspect there are many Democrats in elected office who are of the opinion that abortion is wrong and probably shouldn't be legal in its current form, but aren't fanatics about it and since Roe is settled law they don't need to do anything.

If you try to pass a federal law then you are asking them to commit - and they'd really rather not.

If there are more of them than we suspect, then the fallout could be ugly.
posted by It's Never Lurgi at 12:42 PM on September 3, 2021 [5 favorites]

But as you see in the article, it's been abandoned before [codification], and of course I'm pretty sure it's only useful until the next election.

I think, ultimately, Lyn Never has it. Politics is a cynical game. Democrats only care about abortion come election time. When they can use it as a wedge to drive turnout and they can fundraise around it.
posted by Vek at 12:54 PM on September 3, 2021 [2 favorites]

The Women’s Health Protection Act would codify Roe. Would it be struck down by an activist court? I don't know. SCOTUS could strike any law down for any reason, if 5 justices want to, even if they don't have a good reason. Mumble mumble states rights, whatever.

The reason this hasn't been tested is simple: it's politically tough to put together an actual pro-choice majority in either house, let alone overcome the filibuster, and it's been much easier just not to.
posted by BungaDunga at 1:06 PM on September 3, 2021 [1 favorite]

Heather Cox Richardson's substack essay for today has a good historical perspective. The Supreme Court ruling on Roe V Wade was expected to keep choice/abortion legal. When blaming the Democratic Party, note that when he was Senate Majority Leader, Mitch McConnell (R-KY) blocked hearings on the nomination of Merrick Garland to the Supreme Court, citing the timeframe (8 months or so), then pushed through Amy Coney Barrett in as many days. Abortion has been hyped into a lightning rod; most Americans want it to be safe and legal and uncommon, but the Extreme Right galvanizes Fundamentalist religious voters on the issue.

I'm in Maine having angry thoughts about our Sen. Susan Collins, who blithely assured us that Roe v. wade was safe. She's no rocket surgeon, but she knew better. The GOPers are cynical AF; they care only about winning and enriching themselves and their cronies.
posted by theora55 at 1:25 PM on September 3, 2021 [3 favorites]

The Democratic party has not always been (never been?) 100% pro-choice, so the "why didn't they do it before" part would have to look at specific time periods to see if it was even something they would want to pass.

The current party is closer to a consensus (and certainly things like the party platform support abortion rights), but Manchin for example identifies as "pro-life" and is probably unlikely to support such a bill. So unless he changes his mind, there is no way to pass one today.
posted by thefoxgod at 1:45 PM on September 3, 2021 [2 favorites]

I think the bottom line is they do not have the votes. I think they could overcome the legalities, but need the votes.

This is, and always will be, the answer to any “Why don’t the Democrats...” question. It’s the curse of being an actual big-tent party. There are a far wider spectrum of views, from left to right, from atheist to pentecostal, etc. There will always be Democrats what are against abortion, and some of those get elected to congress.
posted by Thorzdad at 3:47 PM on September 3, 2021 [3 favorites]

To be clear, the WHPA was to be enacted under the Commerce power, as with Violence Against Women Act. Such expanded use of the Commerce power is one of the main things the Federalist Society and the judges it grooms have been hostile to.

(18) Congress has the authority to enact this Act to protect abortion services pursuant to—
(A) its powers under the commerce clause of section 8 of article I of the Constitution of the United States;
(B) its powers under section 5 of the Fourteenth Amendment to the Constitution of the United States to enforce the provisions of section 1 of the Fourteenth Amendment; and
(C) its powers under the necessary and proper clause of section 8 of article I of the Constitution of the United States.

posted by snuffleupagus at 5:26 PM on September 3, 2021

They have had a majority in both houses at least some of the time (e.g. now)

To be very clear, having a simple majority in the Senate is insufficient to pass most legislation, under current Senate rules. That's because, to end debate on a bill and allow it to be voted on, 60 votes—rather than a majority—are needed. This practice—to prevent a vote on a bill by never cutting off debate—is called the filibuster.

The reasons for the rule filibuster are terrible, and it should be changed (in fact, it should have been changed long ago, or rather, never come into being in the first place). But it is a fact of life. That means for a typical bill to pass, it needs all 50 Democrats plus 10 Republicans.

Most Democratic senators want to get rid of or at least curtail these rules. And in fact, you could change or eliminate the filibuster with just a simple majority vote. However, two Democrats senators (Joe Manchin of West Virginia and Kyrsten Sinema of Arizona) have repeatedly expressed their outright opposition to any such changes, and I suspect more are quietly hiding behind Manchin and Sinema.

It's also important to note that party discipline in the U.S. is not what it is in most parliamentary systems. Joe Manchin, for instance, identifies as "pro-life," meaning he likely would oppose any effort to codify abortion rights into law. There used to be far more anti-abortion Democrats, but they're pretty rare now, so Manchin's a relic. But while opposing party leadership is a recipe for demotion or even getting kicked out of your party's caucus in other countries, it is very common here and is almost never punished. (Republicans are better at enforcing discipline, for a whole host of reasons, but even they haven't yet managed to boot Liz Cheney for her defiance. They might, though.)

Finally, as others have alluded, there's a good chance the Supreme Court, because it is dominated by far-right ideologues, could strike down such a law. In the U.S., we have a very powerful (I would 100% say "far too powerful") system of "judicial review," which allows the courts to invalidate laws for a wide variety of reasons. If a law is struck down for violating the Constitution, that decision is final. Sometimes, you can pass a different version of the law that survives further judicial review, but in the case of abortion rights, it's hard to imagine being able to do that.

So if the Supreme Court were to say a law codifying abortion rights was unconstitutional, that would, in practice, be the end of the line. (And this is where I believe we are ultimately headed.) It's theoretically possible to pass an amendment to the Constitution guaranteeing abortion rights (in which case the Supreme Court could not overturn such a right), but in reality, this will never happen. That's because it takes a two-thirds vote of both houses of Congress, then ratification by three-quarters of the states.
posted by Conrad Cornelius o'Donald o'Dell at 9:29 PM on September 3, 2021 [2 favorites]

I haven't studied the cases in a while because I can't bring myself to read the outcome-driven tendencious garbage that the modern court dresses up as legal reasoning, but the court has been hostile to the tools that Congress that might use to pass an abortion law: (a) the court has struck down some laws as being beyond Congress's power under the commerce clause - i.e., if the law does not have to do with regulating interstate commerce, it is beyond Congress's limited power to legislate; and (b) the court has struck some laws that attempt to use Congress's spending power to incentivize states to do something in exchange for federal funding, as "coercive." Again, I haven't studied this stuff in a while, but my sense is that the court would have plenty of tools to strike down a national abortion law. That doesn't mean Congress shouldn't do it -- having the court do something like that might drive a political movement against the court's power -- but it is to say that a legislative solution is not as simple as the question suggestions.
posted by Mid at 6:12 AM on September 4, 2021

Or a freewheeling constitutional convention, which under present conditions would be an exciting way to dissolve the union.
posted by snuffleupagus at 9:12 PM on September 4, 2021 [1 favorite]

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