Reaching for Reproductive Justice & Coming Up Short: The Women's Health Protection Act

By Kelly Folkers (June 22, 2021)

As the country braces for the Supreme Court to hear a challenge to Roe v. Wade, Congressional efforts continue to codify the right to abortion into law. This month, Senate Democrats reintroduced the Women’s Health Protection Act (WHPA), which would prevent state governments from interfering with the right.

The reemergence of the WHPA comes as abortion rights hang in a particularly precarious balance. According to the Guttmacher Institute, state legislatures in 47 states have introduced 165 pre-viability bans since January 2021, and 83 have been enacted. At least 10 states have “trigger laws” in place that would ban abortion if the Supreme Court does overturn Roe next year.

The bill’s primary sponsors, Senator Richard Blumenthal (D-CT) and Senator Tammy Baldwin (D-WI) have reintroduced the WHPA in every Congressional session since 2013. Yet, the bill has never received a vote. Likely in reaction to the upcoming Supreme Court challenge, the 2021 WHPA has a record number of sponsors: 48 in the Senate and 176 in the House. Representatives Judy Chu (D-CA), Lois Frankel (D-FL), Ayanna Pressley (D-MA), and Veronica Escobar (D-TX) are the bill’s lead sponsors in the House.

The bill is described as a “guarantee” of abortion rights and would make it significantly harder for individual state legislatures to impose medically unnecessary restrictions. However, this is a misnomer as it does not establish a positive right to abortion services. The WHPA only codifies the pre-existing right to abortion access without doing more to ensure access is available to all.

Instead of taking proactive steps to increase abortion access beyond the current system, the bill goes on the defensive by targeting state laws that make abortion access unnecessarily restrictive. The bill states that patients have a statutory right to services without a variety of limitations or requirements that many state legislatures have in place, like requiring patients to receive an ultrasound, to visit a clinic for a medically unnecessary reason, or to be given medically inaccurate information.

In a reaction to litigation on access impediments, the WHPA creates a framework for analyzing laws across the states. The analysis includes whether a limitation or requirement is reasonably likely to delay access to care, whether it directly or indirectly increases the cost of care, including associated costs for taking time off work, childcare, or travel, or whether it is reasonably likely to result in a decrease in the availability of abortion services in a given state or region.

Though the WHPA would be a welcome step forward, more will be needed to create true reproductive justice. The bill cites reproductive justice as the main goal, stating that reproductive justice is “a human right that can and will be achieved when all people […] have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination.” Without a shift from defense to offense and the creation of true structural changes, congressional Democrats fall short of achieving their goal.