A federal abortion law might be needed

Last week the Kansas Supreme Court charted a path for abortion rights independent of the U.S. high court. According to its ruling, the state’s constitution not only protects a woman’s right to abortion but grants even more protection than the federal Constitution as currently interpreted. For those who worry the appointment of Brett Kavanaugh may presage a curtailment of reproductive rights, the Kansas court showed one way forward.

But there is another. It may be time for a federal abortion law. This might seem like a fanciful idea at first, as we are accustomed to leadership from the margins rather than the center on the issue of abortion rights.

{mosads}But 6 out of 10 Americans support a legal right to abortion in all or most cases. Americans are also non-absolutist — agreeing that some restrictions are permissible. And most seem to appreciate that there are tough issues about which we might reasonably disagree — like how serious of a threat a continued pregnancy must pose to a woman’s health to justify a third trimester abortion.

Abortion access affects real people we know. One in four women in the U.S. will have had an abortion before they are 45 years old. Most women who terminate pregnancy already have one child. Everyone in America must know someone who has had an abortion and is probably relieved that their mother, sister, wife, daughter, or friend was able to secure a safe one.

A federal law could set a general limit on state regulation, like the Kansas Court did in requiring a compelling interest to justify restrictions on abortion access. Or it might provide more structure for what states may and may not do. For example, state laws advanced as protecting women’s health could be required to have a factual basis — no more specious requirements for hospital admitting privileges. State mandated abortion information could be required to be fact-based and neutral. (They couldn’t, for example, promote a false link between abortion and breast cancer.) And so on.

The Supreme Court’s protection of reproductive rights has been weak since its 1992 decision in Planned Parenthood v. Casey. While that decision affirmed Roe v. Wade’s right to terminate a pregnancy, it allowed states much greater latitude in regulating as long as they did not place an “undue burden” on a woman seeking to end her pregnancy.

The vague “undue burden” standard has encouraged some states to pass increasingly restrictive laws. For example, states have intentionally imposed impossible standards on providers, required unnecessary vaginal ultrasounds, and restricted early-term medication abortions. These laws often just delay abortions, which makes them both less safe and less respectful of fetal life. They also disrespect the girls and women who seek them.

Often the courts have overturned the worst laws, but it takes time. In the meantime, inequality in access across the states is increasing. Seven states have passed such onerous requirements on providers that only a single clinic remains.

All of this is to say, people who support equal access to safe abortion care across the nation could do better than rely on the Supreme Court, especially with its new conservative majority.

But conservatives might also see merit in a federal law protecting safe access, or at least a few key Senators might.

For decades, conservative lawmakers could advocate hard-line policies knowing the Supreme Court would block the most extreme proposals. Some sincerely believed their positions. Others have just been posturing, like former Rep. Tim Murphy (R-Pa.), exposed for asking a woman with whom he’d had an extramarital affair to get an abortion.

But the new Court majority may force a rethinking for Congressional conservatives as well. Some state legislatures are passing extreme abortion laws, like the recent slate of “fetal heartbeat” laws which would essentially ban abortions 4 weeks post-conception. If such laws are allowed to stand, federal lawmakers will find it difficult to face their constituents when abortions go underground and become dangerous for family and friends.

Some will say that compromise is unprincipled. But we currently have a compromise — Roe was a compromise, Casey was a compromise. Neither decision made abortion solely a matter of a woman’s choice or allowed its complete ban. To be clear, I’m not suggesting courts abandon their role in protecting individual rights — I’m worried they will — but we do have a branch of government that’s more suited to lawmaking, and it looks like the time to turn to it.

Against expectations, a bipartisan criminal reform bill was recently passed. We shouldn’t dismiss the possibility of a federal abortion protection law.

To be sure, there are limits to Congress’s power. But a federal law could be grounded in the Commerce Clause, like the Federal Partial Birth Abortion Ban Act, upheld in 2007.

Sen. Susan Collins’ vote put Brett Kavanaugh on the court after he convinced her Roe was “settled law.” She still apparently believes him — despite his recent dissent in a case that should have been decided on precedent. The rest of us don’t need to wait to see whether Collins can read Kavanaugh’s mind better than we can. Or whether Justice Roberts will move to the center.

The future of access to safe abortion for girls and women across the U.S. should not rest with one man. We should be able to agree to that.

Lois Shepherd is professor of law, professor of public health sciences, the Wallenborn professor of Biomedical Ethics, and co-director of Studies in Reproductive Ethics and Justice at the University of Virginia. Follow her on Twitter @loislshepherd.