Women’s civil rights are not a state issue

In response to the extreme Alabama abortion ban passed this week, Sens. Elizabeth Warren (D-Mass.) and Kirsten Gillibrand (D-N.Y.) are calling for a federal abortion access law. It’s time for other members of Congress to join them — any who believe in women’s civil rights, which, honestly, should be all of them.

Even televangelist Pat Robertson says the Alabama abortion law passed this week goes too far. The law won’t go into effect until November and will certainly be blocked by courts for years. But women in the U.S. are panicked.

{mosads}We remember how candidate Trump appeared naïve when he said women should be punished for abortion; at that time, his Republican male colleagues gently corrected him. There’s no mistaking what is happening now, however. The Alabama Senate voted 25 to 6 in favor of the bill. All 25 “yes” votes came from Republican men. Let’s call this what it is: A war on women.

The Alabama law bans abortion at any time in pregnancy. There is no exception for rape or incest because if a fetus is a person, as the law declares it to be, then it doesn’t matter how it was conceived. And the declaration of fetal personhood means this bill does far more than ban abortion, which is harmful enough.

It would give state officials unprecedented power over all women of child-bearing age, including those who intend to carry their pregnancies to term.

Women’s civil and human rights are at stake. Even before the Alabama law — and the recent Georgia “fetal heartbeat” law and Mississippi law and Kentucky law, it seems to go on and on — state authorities have arrested and/or detained over 1200 pregnant women for pregnancy termination or loss, for falling down a flight of stairs or refusing bedrest. Courts have tended, on appeal and way too late, to uphold women’s rights but the tide may be turning.

Sens. Warren and Gillibrand are right: It is time to introduce a federal bill to protect the rights of girls and women to safe abortion access and to reject fetal personhood.

There is no need to wait for the Alabama law and other extreme state laws to go into effect or for them to be reviewed by higher and higher courts. Under current Supreme Court precedent, these laws are clearly unconstitutional. But we have all been watching the seismic shifts occurring in Court personnel.

We’re no longer talking just about the width of clinic hallways and physician admitting privileges, issues linked to traditional state powers to regulate the practice of medicine and for which Congress might wish to defer to the states.

Women’s civil rights are not a state issue. Just like the rights of religious, racial and ethnic minorities are not a state issue, or the rights of people with disabilities, or the rights of members of the LGBTQ community. It shouldn’t matter whether women live in New York or Alabama to be treated as full human beings with equal rights to bodily integrity and self-determination.

Federal authority is clear here — the Equal Protection Clause is practically calling for this legislation. And Congress has legislated on abortion before. The Federal Partial Birth Abortion Ban Act was upheld in 2007 under the Commerce Clause. 

On Thursday, even the House Minority Leader Kevin McCarthy said he opposed the Alabama law, but then he punted: “Look I’m not an attorney. I’m not on the Supreme Court.”

McCarthy and colleagues might need a review in basic civics. Federal law preempts state law. And we have three co-equal branches of federal government, though that might be hard to believe these days.

It’s time to act. The House, with its Democratic majority, should be able to pass a law protecting the rights recognized in Roe v. Wade. The Senate may also — if this moment of shock and dismay is seized and the energy of the women in this country is leveraged. In any event, even if passage is not now assured, the seed for future federal legislation protective of women’s rights will be planted.

The Senate Committee on Health, Education, Labor and Pensions should begin hearings. Senator Warren is on that Committee. And you know who else is? Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska). We all remember Collins’ “yes” vote on Supreme Court Justice Brett Kavanaugh and Murkowski’s “present.” It’s time for them to step up.

And no, it’s not fair to put this burden on the shoulders of women Senators. It’s not fair to them any more than when that male colleague, years ago, asked them for a cup of coffee. Or any of the other ways that they have been treated differently because they are women. But we need their leadership and we need it now.

Make law, not promises. We need you. Now.

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 and a Public Voices Fellow with the Op-Ed Project. She is on twitter @loislshepherd.