Under Harris’s proposal, states whose abortion-related laws have recently been struck down by courts for violating Roe v. Wade would have to obtain federal approval from the Justice Department before they’re able to implement any new abortion laws.
It’s similar to a key provision of the landmark 1965 Voting Rights Act, which required states that had implemented discriminatory voting practices in the past to get Justice Department clearance to enforce additional laws. As a result of this requirement, the department blocked 86 election-related updates that could have disenfranchised people of color between 1998 and 2013, according to Harris’s campaign.
The California senator and 2020 contender is set to unveil this proposal during an MSNBC town hall on Tuesday night, a move that comes in the wake of multiple states passing severe restrictions to reproductive rights, including a near-total ban on abortion in Alabama.
Harris’s plan would have to be enacted by Congress — likely a tough sell if the Senate remains Republican-controlled — but if approved, it would empower the Justice Department to use the same Voting Rights Act approach on laws related to reproductive rights. Right now, if a state passes a law on abortion rights that contradicts Roe, for example, it faces court challenges aimed at preventing it from going into effect, but the burden is on activists to mount these cases. Harris’s plan would preempt such challenges by forcing states to justify to the Justice Department why the laws aren’t violating constitutional precedent in the first place.
This aspect of the plan is a game-changer, says Laurie Rubiner, a former vice president of public policy for Planned Parenthood. “What is different about this is that she’s really going on the offense,” she told Vox. “The onus would be on the states and the anti-choice legislators who are passing these laws.” Under Harris’s plan, laws like Alabama’s near-total abortion ban would not be enforceable without Justice Department approval.
Just like the agency has been able to block laws that likely would have restricted voting rights, it would be able to do the same on laws aimed at restricting abortion rights.
What Harris’s plan would do
Harris’s plan, much like the Voting Rights Act originally did, would establish a list of states that aren’t able to impose abortion-related laws without Justice Department approval.
Any state that’s demonstrated a pattern of violating Roe in the past 25 years would be on this list. A congressional formula would decide which reproductive health laws counted as violations based on court settlements or decisions that found a state’s law directly contradicts the 1973 landmark Supreme Court decision, which established a woman’s constitutional right to abortion.
In states like South Carolina, Iowa, Georgia, and Mississippi, federal judges have already ruled that laws approved by state legislatures contradict Roe. Such decisions would land these states on a “preclearance” list.
States that are on this list would not be able to legally enforce any abortion laws until they get approval from the Justice Department. As a result, the department would be able to bar state laws from ultimately going into effect if they do not match up with the precedent set by Roe and additional policies detailed by the Women’s Health Protection Act, which targets regulations like mandatory waiting periods that make it tougher for women to obtain abortions.
This clearance requirement was a highly effective pillar of the Voting Rights Act — until part of the law was struck down by the Supreme Court in 2013 in the Shelby County v. Holder case. In that decision, the Court called on Congress to craft an updated version of the law that would use a formula based on more recent historical data to identify the states that have engaged in discriminatory practices.
Harris’s campaign argues that her plan on reproductive rights actually addresses the concerns that were raised in that 2013 decision, since the states that are designated for Justice Department clearance would be determined by actions they’ve taken in the past 25 years.
If this policy were to become law, it could have a major impact on states’ abilities to enforce rules that limit abortion after a certain timeframe, like the “fetal heartbeat” bills in Georgia, Ohio, and Kentucky, which ban abortion as early as six weeks into pregnancy — before many people know they’re pregnant. As Harris’s campaign notes, states have passed more than a thousand abortion restrictions since 1995.
Much like efforts to pass the Women’s Health Protection Act, a bill that seeks to codify Roe as law, however, this proposal faces some serious headwinds. It’s set to have an uphill battle in Congress, especially under divided government. Even if Democrats keep the House and retake the Senate, they would need 60 votes in the upper chamber to push such legislation through.
Additionally, it’s possible that the plan could encounter court challenges from anti-abortion rights advocates arguing that such a law infringes on states’ rights — though Rubiner notes that she believes Harris’s idea passes “constitutional muster.”
Harris’s plan highlights the role the federal government could play on this issue
So far, the abortion rights fight is one that’s played out primarily in the courts. Harris’s proposal offers another indication of what the federal government could do to protect abortion rights outside the judiciary.
Other candidates have also rolled out policies focused on curbing efforts in the states: Sen. Elizabeth Warren’s plan includes backing for the Women’s Health Protection Act, which bars state laws that target abortion providers, and Sen. Kirsten Gillibrand’s would create a new stream of funding that ensures access to reproductive health centers in every state. Sen. Cory Booker has said he intends to establish an Office of Reproductive Freedom dedicated to developing policies on this issue.
A major question that’s emerged as states approve aggressive restrictions on abortion rights is what role the president and Congress could play in protecting them. Appointing judges that would defend Roe is one clear option, something that Gillibrand committed to early on and is now backed by pretty much every 2020 Democrat. Many candidates have also said they support repealing the Hyde amendment, which prevents individuals from using Medicaid to cover abortion costs, and codifying Roe as law.
In unveiling her recent proposal, Harris argues that codifying Roe is not enough. In addition to doing that, she says, there needs to be a check placed on states before they’re able to enforce any laws that go up against established precedent.
“You do really shift the burden to these states and say enough is enough,” Rubiner says of Harris’s plan.