Editor’s note: This article has been updated throughout.
The Women’s Health Protection Act failed to move forward in the U.S. Senate on Monday, just hours after two Republicans introduced an alternate measure they hope can be the start of bipartisan talks to codify abortion rights.
Sens. Susan Collins of Maine and Lisa Murkowski of Alaska introduced the legislation as an amendment to the WHPA, which Democrats’ preferred to codify abortion rights. Both Republicans have supported abortion rights in the past, but voted no on the WHPA.
The failure of the WHPA was expected. It needed 60 votes to move forward in the evenly divided 100-seat Senate, and received 46 votes in support. An impetus for the push to enshrine abortion rights are two cases before the Supreme Court that could weaken or overturn Roe v. Wade, the 1973 case that guaranteed abortion rights up to fetal viability.
Democratic Sen. Patty Murray warned ahead of the WHPA vote that “sometime in the next few months, we will, very likely, see the historic reversal of a fundamental right Americans have known for nearly 50 years regarding one of the most personal decisions any individual can make.”
Collins and Murkowski said in a statement provided to The 19th that the aim of their legislation would be to codify the Supreme Court’s rulings in Roe v. Wade and the 1992 case Planned Parenthood v. Casey, while preserving states’ rights to enact abortion-related statutes that comply with those rulings.
“Our legislation would enshrine these important protections into law without undercutting statutes that have been in place for decades and provide basic conscience protections that are relied upon by health care providers who have religious objections to performing abortions,” Collins said.
One concern that Collins and Murkowski cited is language in the WHPA related to a 1993 law meant to protect religious freedom. The WHPA states that except as specified, it “supersedes and applies to the law of the Federal Government and each State government,” including the Religious Freedom Restoration Act. That law “prohibits any agency, department or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion.”
More generally, the two senators said they wanted to debate and revise any “extraneous and over-reaching provisions.”
Lawmakers have different notions of what it means to “codify Roe v. Wade.” The protections originally established in 1973 have been narrowed in subsequent decades, thanks to Planned Parenthood v. Casey and subsequent abortion rights cases.
Democrats say the WHPA would codify Roe; but some Republicans, including Collins and Murkowski, say it would go further. Mary Ziegler, an abortion law expert at Florida State University, said that whether the WHPA is broader than Roe is hard to say, but it “definitely goes further than what is allowed under current abortion doctrine.”
Ziegler said another factor is the Supreme Court’s forthcoming ruling in a case called Dobbs v. Jackson Women’s Health Organization regarding a 15-week abortion ban.
“The [WHPA] definitely frames the issue more as a matter of reproductive justice and definitely disallows more restrictions than the current interpretation of Roe/Casey,” Ziegler said.
But at the same time, she added, “other people have a very different understanding of what Roe is — and the original Roe decision arguably looks different from what the court has interpreted it to mean.”
It’s unclear what congressional action on abortion rights could look like moving forward.
“As presently constituted, Congress isn’t going to do anything. That’s pretty clear … there’s going to be an open question about whether Dobbs changes that,” she added.