Over the past few months, several states have moved to severely limit access to abortion, prompting a court fight that could make its way to the Supreme Court. Conservatives are hoping the new right-leaning majority will overturn (or at least chip away at) Roe v. Wade. Liberals, meanwhile, are looking to 2020 to more firmly enshrine the right to have an abortion into law.
One candidate for the Democratic presidential nomination, Sen. Kamala D. Harris (Calif.), has a novel idea for how to do that. She has proposed legislation modeled after the landmark Voting Rights Act of 1965 that would require states with a history of limiting women’s abortion rights to get clearance from the Justice Department before passing laws that limit abortion.
In connecting the two issues, Harris is highlighting the prevalence of discrimination against women in America. On her website, she explains the impetus behind her proposed Reproductive Rights Act this way:
“We are living through an all-out assault being waged on women’s health and reproductive rights. From Alabama to Ohio, and Missouri to Georgia, the goal of Republican politicians is clear: Overturn Roe v. Wade and end safe and legal abortion in America. States have mandated that women submit to invasive ultrasounds, passed laws requiring survivors of sexual assault to carry their rapist’s child to term, and placed onerous and medically unnecessary restrictions on health clinics. These restrictions do nothing to make people healthier or safer. Their sole purpose is limiting access to abortion.”
It’s an idea that could prove popular with the Democratic base and with the country more generally. Though strict bans appeal to the GOP base, 60 percent of Americans believe abortion should be legal in all or most cases, according to the latest Quinnipiac poll on the issue. More than three-quarters believe that abortion should be legal if a pregnancy was caused by rape or incest, according to another Quinnipiac poll.
David Gans, director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center, called the idea of echoing the Voting Rights Act a creative solution. The 1965 law offers a useful model, he said, of how Congress can protect fundamental rights when states are campaigning to flout them.
“This is undoubtedly a bold, creative plan to employ Congress’s expressed constitutional powers to prevent states from thwarting women’s right to an abortion,” he told The Fix. “Obviously, there are differences between the Jim Crow South and voting rights in the 1960s and abortion, but they’re both situations where we’re seeing a number of states targeting a constitutional right and flouting it in a number of different ways. There’s differences, but there’s also similarities.”
But Richard Hasen, professor of law and political science at the University of California at Irvine, cautioned that it’s hard to imagine a law like that passing Congress. And even if it did, it’s not clear the Supreme Court (which gutted the pre-clearance provision of the Voting Rights Act in 2013) would find it legal.
“It’s hard to imagine a more hot-button issue than abortion, as it has been for decades, so I think that I like the out-of-the-box thinking of this. But until there is substantial change in Congress and the Supreme Court, it doesn’t seem like this is going to go anywhere,” he said.
Harris’s framing could benefit her in a primary where so many candidates are trying to win over the liberal electorate. And it could serve as an important reminder that the rights of multiple marginalized groups are at risk under the United States’ current leadership.