October 4, 2022 | Priya Elangovan | Check out more of AIT’s Legislation Breakdowns.

Since the Supreme Court decision in Dobbs v. Jackson Whole Women’s Health overturned Roe v. Wade, women all over the country are navigating the new landscape of abortion access laws in their state, which are continuing to change. Groups on both sides of the issue are pushing Congress to take further action, enacting protections for abortion and reproductive freedom, or making some of the state level restrictions on abortion into national policy.

Currently, there are two bills related to reproductive healthcare access that have been proposed in Congress this session. The Women’s Health Protection Act was re-introduced last year after failing to pass Congress in 2019. The bill has passed the House but failed to move forward in the Senate.

In September, Republican Senators Susan Collins and Lisa Murkowski and Democratic Senators Tim Kaine and Krysten Sinema introduced The Reproductive Freedom for All Act. While the two bills share some similarities and are both designed to protect abortion access, most abortion rights groups support the WHPA and not the RFAA. We break down some of the main impacts of the bills below.

What is included in both bills

  • Both bills focus on the time period “prior to fetal viability” which is generally considered to be before the 23rd or 24th week of pregnancy
  • Protections for abortion after viability when a pregnancy endangers the life or health of the mother
  • Protections for access to contraceptives and contraceptive care
  • Prohibits certain facility requirements for clinics and credential and hospital privileges for providers that were determined in the Supreme Court case Whole Woman’s Health v. Hellerstedt to create an undue burden to seeking abortion care

How the bills differ

  • The WHPA says that states can not prohibit abortion at any point in time prior to fetal viability, while the RFAA states a government cannot impose an “undue burden” on a women’s right to an abortion 
    • There is general consensus from both liberal and conservative legal scholars that the undue burden standard would prevent pre-viability abortion bans, but there are some who argue the language in the bill could allow some of the state laws like Mississippi’s ban on abortion after 15 weeks of pregnancy to stay in place
    • The standard comes from the 1992 Supreme Court case Planned Parenthood v. Casey 
    • This report from the Center for Reproductive Rights offers more detail on how the undue burden standard has applied in laws and cases related to abortion access
  • The WHPA prevents states from requiring abortion seekers to take unnecessary medical tests, and allows abortion provider’s to provide certain services via telemedicine 
  • In general, the WHPA outlines many specific limitations to abortions that the law would prohibit, whereas the RFAA only provides protections for the specific circumstances affirmed in previous Supreme Court proceedings on the issue
  • The RFAA allows healthcare providers to refuse to administer abortions on a religious or conscientious objection

Will these bills pass?

Likely not, while the Reproductive Freedom for All Act has more support because it gives states some ability to regulate abortion, neither bill appears to have support from the 60 Senators necessary to overcome the Filibuster and bring the bill to a vote in the Senate.

If the bills do pass and are ultimately challenged in the Supreme Court, it will be important to watch for its impacts on Congress’s power to regulate abortion as well as the health care system overall.

How to take Action/What to Watch in the Midterms

  • Many states have had changes to their laws since the overturning of Dobbs, this piece from AIT can help you navigate what’s happening in your state
  • Because of both federal gridlock, and many legal questions around Congress’s ability to regulate abortion at the federal level after Dobbs, most of the legislation on abortion will take place on the state level
    • Like Kansas, Michigan will have an initiative on the ballot in November on whether to enshrine abortion rights in the state constitution after the Dobbs decision brought back a state law banning abortion from 1931, which has currently been blocked from enforcement by a state judge
    • The outcome of the governor’s races in states like Pennsylvania and Ohio will determine whether the Republican controlled state legislatures would be able to pass restrictions on abortion
  • You can use the tools on AIT’s website to contact your members of Congress to share your opinions on both bills