Opinion

Elizabeth Warren Just Unveiled Her Abortion-Protection Plan. Here’s How It Would Work.

Everyone is talking about Elizabeth Warren’s Medium post, which unveiled her plan to combat the anti-Roe forces that have been rallying. Here’s what Warren’s plan would be:

  1. Turn Roe v. Wade into a federal statute.

I’m going to file this one under “much harder than it sounds.” Converting any judicial precedent into federal law is a difficult task in any context; in the world of abortion regulations, it will mean next-level complexity. If Roe v. Wade had simply said, “all women have the right to get abortions,” it would be easy. But that’s not what Roe did.

The “right to have an abortion” is the practical result that grew from Roe’s expanded definition of the First Amendment. Almost a decade before Roe, SCOTUS decided that although the First Amendment doesn’t explicitly say so, its guarantees include an implied right to privacy. That right to privacy has come to encompass many topics, including sex, contraception, and to some degree, pregnancy and abortion.

Roe (and later cases) adopted a kind of sliding-scale framework that attempted to take into account the unique complexities of legal issues involving pregnancy and the unborn. Early in pregnancy, women’s rights were paramount, and states could not pass laws that forbade abortion. Late in pregnancy, laws could be far more restrictive, as society has an interest in protecting the unborn. During the middle of pregnancy, states could regulate (but not prohibit) abortion.

Converting the rules of Roe and Planned Parenthood v. Casey into a federal statute would certainly firm things up. However, what, exactly would that statute say? Simply that the First Amendment encompasses a right to privacy, and that privacy includes abortion? Or would it specify when and how states can regulate abortions? While many Americans may agree that Roe’s ruling should be codified, there is likely to be much less agreement over the specifics.

  1. Pass laws to block states from circumventing Roe.

Until recently, states seeking to substantially restrict abortions have done so in the name of “regulation,” by mandating that abortions only be performed at certain (intentionally scarce) facilities. Proponents of Roe have understood such “regulations” as precisely what they were intended to be – laws that appear constitutional on their face, but are actually aimed at circumventing states’ legal obligations.

To combat this ongoing issue, Warren urges that Congress finally pass the Women’s Health Protection Act (introduced in 2013). Specifically, this act targets state laws that treat abortion differently from other medical procedures in an effort to simply make them difficult to actually procure.

This aspect of Warrens plan should be one of the more easy sales.  It makes good logical sense to require the same safety standards for abortion as other medical procedures. Still, it’s not a sure thing.  This act was introduced well before Donald Trump entered the White House, but has languished for six years.

3. Make changes that affect the finances of abortion.

Warren wants Equal Access to Abortion Coverage in Health Insurance (EACH) Act (introduced in 2015) passed, and (as EACH aims) the Hyde Amendment repealed.  Contemplating the disproportionate impact abortion regulations have on the poor, this change is aimed at making abortions more affordable.

After these changes, women who get their insurance through the federal government (Medicare and Medicaid recipients, prisoners, those with veterans’ benefits) would have coverage for abortions. Furthermore, there would be a prohibition on the passage of any federal or state laws that would restrict private health insurance companies from covering abortions.

These changes require legislators to think about two things that make them uncomfortable: abortion and the poor. Even many moderates who could tolerate a statutory right of reproductive freedom might be loathe to vote for a law bound to be characterized as “using federal money to give people abortions.” While intentioned to combat substantial injustice suffered by the economically disadvantaged, these changes will likely be opposed as radical pro-abortion measures.

There’s no question that candidate Warren faces an uphill battle for her plan.  However, given the public outcry over the recent anti-abortion statutes, perhaps Warren will find herself at the helm of an army of Roe-supporters large enough to make real legislative change.  Should she prevail in the game of numbers and votes, states like Georgia, Alabama, and Missouri will be unequivocally out of luck.

Article VI, Paragraph 2 of the United States Constitution contains what’s known as the “Supremacy Clause.” Under that section, federal law is superior to state law, and even state constitutions. Don’t like  it? Talk to Alexander Hamilton. Without that power dynamic, our federal government would be pretty worthless.  Warren’s plan — to cut off overly-restrictive state laws by wielding the full power of federal law in all its glory — is certainly lofty, but would create profound change if successful.

[image via Joseph Prezioso/AFP/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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