Sen. Elizabeth Warren (D-MA) on Friday released a statement calling on Congress to pass a slate of legislation aimed at guaranteeing abortion and other reproductive rights around the country, even if Roe v. Wade falls.
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.
“This is a dark moment,” Warren writes. “People are scared and angry. And they are right to be. But this isn’t a moment to back down — it’s time to fight back.”
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.
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 administration’s domestic gag rule, which bars providers that receive federal family planning funds from performing or referring patients for abortions.
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.
Elizabeth Warren wants abortion protections enshrined in federal law
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 there’s 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. Here’s what her proposal calls for:
A federal law to parallel Roe v. Wade
“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.”
A ban on targeted regulations on abortion providers (TRAP) laws
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 women’s health, but many doctors say they serve no medical purpose.
In 2016, the Supreme Court dealt a blow to the laws, ruling in Whole Woman’s 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 Woman’s Health.
To prevent a resurgence of TRAP laws, Warren is calling for the passage of an existing bill, the Women’s Health Protection Act, which bars states from passing restrictions on abortion clinics that do not “significantly advance women’s health or the safety of abortion services.”
A guarantee of insurance coverage for abortion and birth control
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 doesn’t mean much if a person can’t afford the procedure. Warren’s recommendations on insurance are aimed at ensuring abortion is affordable as well as legal.
A repeal of the Trump administration’s domestic gag rule
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 Administration’s efforts to undermine women’s access to reproductive health care,” she writes — “including ending Trump’s 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.
Warren’s 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 can’t 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.