Since the Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization in June, 17 states banned or largely banned abortion. A handful of other states are in the process of banning abortion, and on Tuesday Kansas will be the first state where voters will go to the polls to determine whether the state will reverse the constitutional right to abortion.
The compromise legislation unveiled Monday secures federal abortion rights up to viability, and allows post-viability abortion when the mother’s health is at risk. The statute does not specify which week is viable or what implies when a mother’s health is at risk. Both issues should be determined by the pregnant person’s doctor.
“It clearly uses viability as an important distinction,” Kaine said. “Pre-viability women should have considerable freedom – a state can regulate, but cannot impose an undue burden. After viability, the state can regulate much more, but can never stop a woman from having an abortion for her life and health.”
The measure comes after Senate Democrats tried to pass partisan legislation that would codify Roe. The vote in May, after a draft of the Supreme Court’s decision was leaked, failed and was supported by 49 Democrats. One Democrat, Senator Joe Manchin III (DW.Va.) and all Republicans, voted against, including Collins and Murkowksi, because, they said, it went way beyond codifying Roe.
Kaine admits, however, that the proposal unveiled Monday does not have the support of the 10 Republicans it takes to get through the Senate. Still, he said it’s an important marker in the conversation.
The bipartisan bill, called the Reproductive Freedom for All Act, also secures access to birth control, which abortion advocates fear will be banned or banned in some conservative states. Griswold v. Connecticut, the Supreme Court case granting a personal right to contraception would be quashed. The bill also includes a conscience clause, allowing a provider to opt out of abortion services if it violates a religious belief, an issue that was important to Collins.
“There is a majority of the US Senate that wants to codify” Roe v. Wadeand to give the impression that only a minority wants to codify Roe v. Wade“I think that’s a weak position to be in,” Kaine said in an interview on Monday.
“For five decades, reproductive health care decisions have focused on the individual — we can’t go back in time to limiting women’s personal freedoms,” Murkowski said in a statement.
It’s not clear whether Senate Majority Leader Charles E. Schumer (DN.Y.) would submit the bill for a vote ahead of November’s midterm elections. There has been disagreement in the Democratic caucus over whether to pass a bipartisan bill that has no chance of passing, which would make it harder 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 contains fewer restrictions on abortion.
Kaine calls the bill the bare minimum.
“What the four of us tried to do was set a legal minimum that replicated what the law was a day before dobbs,” he said.
Recent polls by The Washington Post-Schar School found that a majority of respondents — 58 percent — supported access to abortion until it was viable, including 77 percent of Democrats and 59 percent of independents. However, only 34 percent of Republicans supported it.
Abortion groups are critical of the proposal, partly because it does not make it to the Senate because of the 60-vote threshold in that chamber.
“This bill is just another political stunt that would fail to address the abortion rights and access crisis that has already pushed healthcare out of reach for millions,” 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 is no reason to take it seriously.”