A bipartisan group of senators has unveiled compromise legislation to guarantee federal access to abortion, an effort to codify abortion after the Supreme Court overturned Roe v. Wade. It faces an uphill battle in the Senate, where it is unlikely to gain enough Republican support.
Since the Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization in June, 17 states have either outlawed or mostly banned abortion. A handful of other states are in the process of prohibiting abortion, and on Tuesday, Kansas will be the first state where voters are set to go the polls to determine whether the state will reverse the constitutional right to an abortion.
The compromise legislation unveiled Monday ensures federal abortion rights up to viability, and allows post-viability abortion when the health of the mother is in jeopardy. The statute does not specify what week is viability or what constitutes when a mother’s health is in danger. Both issues are to be defined by the pregnant person’s medical practitioner.
“It clearly uses viability as a key distinction,” Kaine said. “Pre-viability women should have significant freedom — a state can regulate but can’t put an undue burden. Post-viability, the state can regulate a lot more, but can never stop a woman from accessing an abortion for her life and health.”
The measure comes after Senate Democrats attempted to pass partisan legislation that would codify Roe. The vote in May, after a draft version of the Supreme Court decision was leaked, failed, gaining the support of 49 Democrats. One Democrat, Sen. Joe Manchin III (D-W.Va.) and all Republicans, voted against it, including Collins and Murkowksi because, they said, it went far beyond codifying Roe.
Kaine admits, however, that the proposal being unveiled Monday does not have the support of 10 Republicans needed for it to pass the Senate. Still, he said it’s an important marker in the conversation.
The bipartisan bill, called the Reproductive Freedom for All Act, also ensures access to contraception, which abortion advocates fear will be outlawed in some conservative states or that Griswold v. Connecticut, the Supreme Court case that granted a personal right to contraception, would be overturned. The bill also includes a conscience clause, which allows a provider to opt out of abortion services if it violates a religious belief, an issue that was important to Collins.
“There’s a majority of the U.S. Senate that wants to codify Roe v. Wade, and to leave the impression that there’s only a minority that wants to codify Roe v. Wade, I think, is that’s a weak position to be in,” Kaine said in an interview Monday.
“For five decades, reproductive health-care decisions were centered with the individual — we cannot go back in time in limiting personal freedoms for women,” Murkowski said in a statement.
It’s not clear that Senate Majority Leader Charles E. Schumer (D-N.Y.) would bring up the bill for a vote ahead of the midterm elections in November. There has been disagreement in the Democratic caucus on whether a bipartisan bill that has no chance of passage should be brought forward, which would make it more difficult for Democratic candidates to contrast themselves with Republicans. And many Democrats, Kaine said, would prefer the Democratic version of the bill, the Women’s Health Protection Act, which includes fewer limitations on abortion.
Kaine calls the bill the bare minimum.
“What the four of us were trying to do was put a statutory minimum in place that replicated what the law was a day before Dobbs,” he said.
Recent polling by The Washington Post-Schar School found that a majority of respondents — 58 percent — supported access to abortion until viability, including 77 percent of Democrats and 59 percent of independents. Just 34 percent of Republicans, however, supported it.
Abortion rights groups are critical of the proposal, in part because it won’t pass the Senate because of the 60-vote threshold in that chamber.
“This bill is just another political stunt that would not actually address the abortion rights and access crisis that has pushed care out of reach for millions of people already,” NARAL Pro-Choice America President Mini Timmaraju said in a statement. “Unless these senators are willing to end the filibuster to pass this measure, there’s no reason to take it seriously.”