On July 15, 2022, the House of Representatives enacted H.R. 8296 (“Women’s Health Protection Act of 2022″). The vote in favor of the bill was 219 (all Democrats), the vote opposed was 210 (209 Republicans and 1 Democrat). The text of H.R. 8296 and the voting on it are available here.
Democrats claimed that they were passing H.R. 8296 to codify the Supreme Court decision of Roe v. Wade, 410 U.S. 113 (1973). A copy of the Roe v. Wade decision is available here. A comparison of the text of H.R. 8296 to the text of the Roe v. Wade decision shows the Democrats’ claim was a serious misrepresentation because H.R. 8296 does not adopt or follow the Roe v. Wade decision, but actually ignores and runs contrary to key passages of that decision.
In the Roe v. Wade decision, the Supreme Court stated the following:
(1) a woman’s right to abortion “is not unqualified and must be considered against important state interests in regulation” (410 U.S. at 154);
(2) it agreed with the approach of various federal courts that “the right [to abortion], nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, becomes dominant” (410 U.S. at 155);
(3) “As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of the health of the mother or that of potential human life, becomes significantly involved. The woman’s right to privacy is no longer sole and any right of privacy she possesses must be measured accordingly.” (410 U.S. at 159)
(4) the State’s interest in the health of the mother becomes “compelling” at the end of the first trimester of pregnancy, and “from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health” and that “[e]xamples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like” (410 U.S. at 163);
(5) “With respect to the State’s important and legitimate interests in potential life, the ‘compelling’ point is at viability.” (410 U.S. at 163); and
(6) These points are also summarized by the Supreme Court at 410 U.S. 164-165.
In Section 2(a)(1) and Section 2(a)(6)(“Findings”), H.R. 8296 merely refers to the Roe v. Wade decision, but does not refer to, or discuss, the Supreme Court’s reasoning and conclusions about the nature of the right to abortion or the States’ legitimate interests in regulating abortion after viability. Instead of citing or relying on any specific language in the Roe v. Wade decision, Section 2 of H.R. 8296 (“Findings and purpose”) cites and relies on various other justifications for the legislation, including: (a) references to the concept of reproductive justice; (b) references to international human rights law on access to abortion; (c) the need to remove restrictions on reproductive health “that perpetuate systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism”; and (d) assertions that abortion-specific restrictions “are even more compounded by the ongoing criminalization of people who are pregnant” and “a tool of gender oppression.”
The provisions of H.R. 8296 do not track or embody any of the Supreme Court’s reasoning and conclusions in Roe v. Wade about: (a) the limited nature of the right to abortion; (b) the States’ legitimate interests in regulating abortion after viability; or (c) the types of State regulation of abortion after viability that the Supreme Court specifically deemed permissible. To the contrary, the totality of the provisions of H.R. 8296 elevate the right to abortion to a de facto right to unfettered access to abortion, and seeks to preclude State regulation of abortion that does not facilitate access to abortion.
Whether you agree or disagree with the Supreme Court’s reasoning and conclusions in the Roe v. Wade decision, it is clear that the Democrat-controlled House of Representatives did not codify that decision in H.R. 8296. The phrase “codify Roe v. Wade” makes for a catchy political sound bite, but it is the political equivalent of false and misleading advertising. Just as the so-called “Inflation Reduction Act” is not really about reducing inflation, H.R. 8296 is not really about codifying the Roe v. Wade decision. Section 2 of H.R. 8296 (“Findings and Purpose”) shows that the Democrats voting for its passage were endorsing and adopting a variation of critical theory on race and gender, and identity politics, not the Roe v. Wade decision, to justify its abortion legislation.
Why can’t Democrats just be open and honest with the American people about what they are trying to enact into law? If Democrats want to rely on some variation of critical theory on race and gender, or identity politics, to justify enacting abortion legislation, then they should not try to hide their reliance on those doctrines from the American people by using a misleading meme to characterize their legislation.
In the upcoming Congressional election of 2022, why should voters trust Democrats who use the political equivalent of false and misleading advertising to justify their legislative efforts?
