It was a curious bit of journalistic malpractice, made worse by the fact that it appeared in the New York Times, the paper of record, after passing editorial muster. The headline is where it started.
How a Bill to Protect Abortion Access Failed in the Senate
After Republicans blocked the legislation intended to preserve rights established by Roe v. Wade, Democrats vowed to keep fighting, with an eye on midterm elections.
On the one hand, the bill wasn’t intended to “preserve rights established by Roe v. Wade,” but to expand them far beyond anything Roe and Casey would permit. On the other hand, it wasn’t Republicans who blocked the bill, as Annie Karni’s article went on to assert.
With 51 senators opposed and 49 in support, Democrats fell short of the 60 votes they would have needed to take up sweeping legislation to ensure abortion access and explicitly bar a wide array of restrictions.
If it’s not immediately clear what’s wrong with that characterization, consider Senator Elizabeth Warren’s explanation of the math involved.
“I believe in democracy, and I don’t believe that the minority should have the ability to block things that the majority want to do. That’s not in the Constitution,” the liberal senator told CNN reporter Manu Raju following the vote.
The 49 votes for the bill is the majority. The 51 votes against are not. Had there been no threat of filibuster, the bill would still not make it to the floor because 51 senators voted no. This came after the Democrats sent out their new correct word usage in abortion messaging.
With all this apparent effort to move this bill forward, to accomplish nothing more than codifying Roe which has the overwhelming support of a nation, what could possibly go wrong?
Democrats touted the bill, which was supported by 49 senators, as a way to preserve the rights protected by Roe. But it goes much further than that, overriding existing regulations that have been upheld by the courts under current precedents or have yet to be tested.
Further? But surely the New York Times would report honestly about this bill if it wasn’t merely the codification of existing law in the face of a likely overruling of Roe.
The Women’s Health Protection Act of 2022 says states may not ban abortion prior to “viability” (i.e., the point at which a fetus can survive outside the womb), which nowadays is generally said to occur around 23 or 24 weeks into a pregnancy. The bill also prohibits bans on post-viability abortions “when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”
The kicker to the bill is less about abortion on demand prior to viability, even though viability raises sticky questions, fails to provide a cognizable fixed end point in time and may well become a moving object as medical advances change the nature of viability. No, the kicker is in the post-viability option raising two significant problems.
The first is that the “risk to the pregnant patient’s life or health” defines health as mental health, not merely physical health. This hole renders the limits of the law essentially meaningless, as any woman can claim her mental health will be affected if she’s denied an abortion.
But what about the “good-faith medical judgment of the treating health care provider”? Isn’t that good enough to thwart a dishonest claim of an adverse impact on mental health? Initially, note that it doesn’t say medical doctor, but health care provider. Further, there are already supporters of extensive expansion of abortion within the ranks of health care providers who will sign off, with the best faith, on a post-viability abortion for the woman’s mental health. This would, in effect, permit abortion on demand up to birth.
In Casey, the Supreme Court held that states may not impose an “undue burden” on abortion and include “exceptions for pregnancies which endanger the woman’s life or health.” Republican senators Susan Collins (Maine) and Lisa Murkowski (Alaska) support abortion, and they, plus West Virginia Democratic Senator Joe Manchin, would have supported a bill that in fact codified Roe and Casey. That doesn’t mean it would have survived a Republican filibuster, but at least it would have had a chance rather than, as Manchin said, expanded Roe.
As states are enacting laws that will wreak havoc with abortion rights, ranging from limits to prohibitions and even criminalization, the need to codify Roe and Casey in light of the Alito draft decision which, according to myriad leaks coming out of the Supreme Court, is going to hold for the final opinion, is real but the Dem Senate bill seems intended, destined, to fail. You wouldn’t know it from the reporting in the New York Times, which studiously concealed that this bill went far beyond codifying Roe and demonstrated a remarkable inability to do basic math.
Why? Why take the bill from a place where the public overwhelmingly supports it, where it has its best support in the Senate, and toss in a tricky radical shift that would allow partial birth abortion? It may not be clear that the Dems would win in the Senate with a bill that wasn’t radical in its approach and, in fact, did what they claimed it would do, but it would be honest, have the support of a majority of Americans and have the best possible chance of enactment for the benefit of women, as well as the demographics that concern the ACLU.
A cynic might suggest that the Dems don’t want to “fix” Roe, even if they and their fellow travelers in the media want to create the appearance that they do. Rather, the Alito draft gave the Dems an opportunity to exploit the outrage over abortion, which may provide the impetus to get as much of a blue wave out to vote as possible. It’s almost as if all the tears shed over “My Body, My Choice Decision” are for political show and not meant to codify the right to abortion at all.
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Roe and Casey are a floor, not a ceiling. Under existing law many states still make abortion access near impossible. I disagree that pushing for more abortion access then Casey is “radical”. What is radical is where the Republicans are going next. And yes, it would never pass the Senate, so the Ds might have well put the bill they wanted.
Radicals want to ban and criminalize abortion. Radicals want abortion on demand to the moment of live birth. You can disagree all you want. It’s not as if anyone gives a damn.
There is almost no one who wants abortion on demand to the moment of live birth. That would be a truly radical position. But banning and criminalizing abortion is a common (and also radical) Republican position. And yes, you are correct in that do one gives a damn.
I am shocked that you would bring up abortion on demand. That is a far right wing talking point and your writings are of a type of reason and non-partisanship that is rare.
As I’ve made abundantly clear, I favor abortion as a matter of necessary public policy. That does not mean that I think abortion is a good thing, should be taken lightly or should be an alternative means of birth control for the terminally irresponsible.
Your position probability matches the middle-left and most popular position in the US. If that was official policy the left would be content.
I was unaware until now that you were the boss of the left. And this could have been the official policy if the left wasn’t so radical, greedy and arrogant.
It’s really not hard to find people who believe that abortion should be legal for any reason right up until moments before birth, on the grounds that anything else is a nose under the camel’s tent that undermines the right to choose. Many who are for the legality of such practice may not think it’s a good idea ethically, like the hypotheticals ethicists give of a woman who wins a European cruise a week before she’s due and decides to abort so that she can look good in a bikini on her surprise trip two weeks later, but their position is that the right to choose is the right to choose (or “decision” now), for any reason, and despite any dubious ethics/morality, the law shouldn’t be involved.
It may be a fringe view, but on this particular issue, the fringes drive much of the conversation and policy.
“Radical” compared to the line we have been fighting about for fifty seems like a pretty obvious adjective. What you “feel” is radical is irrelevant.
You might also wonder why dishonest language has to be used, and whether that has influenced your feelings
Pushing for abortion access at, say, 8 months is beyond radical. The Republicans are much closer to right (not to mention the consensus of the public) than the crazy Democrats are as to that provision. And others.
Your side is not on a position to make strong statements like “Roe and Casey are the floor” because you don’t have any legal path to make it so. You’re just talking trash while you whistle past the graveyard.
Do you want reasonable abortion rights preserved or do you simply want to vent your righteous rage?
The bill they wanted, or the result they wanted?
Abortion is a fake issue. In the absence of a media blitz, only a tiny minority would care whether women in states where they do not live can have abortions. The parties promote this fake issue because it serves two purposes:
1. It distracts and entertains us while they do things that we would all hate if we were paying attention.
2. It divides us and makes us hate each other.
There is no problem. The only problem is the idea that a problem exists. In states where people like abortions, they have lots of them. In states where people don’t like them, they are rare or maybe even nonexistent. This is the way it should be. The change proposed by Alito and his crew is an incremental change. Laws in states where people don’t like abortion would change to be in line with public opinion. Abortion-loving states would probably loosen their standards in response. Abortion-lovers who live in red states would be incentivized to move. That would be a good thing.
While I’m reluctant to engage at all, this is too simplistic and terrible to pass on without comment. Abortion isn’t a fake issue at all and is very real. I’m sorry you can’t see that. Yes, other issues exist too. I’d explain more, but I have a strong suspicion it wouldn’t do any good. But then I must be sheepishly following the media “blitz”, right? “They can just move.” Brilliant.
Does it really matter to anyone else whether PGP doesn’t think it’s a real issue? If it is (and it is), his saying it isn’t changes nothing.
You’re right. I should have let it go. Did you have to let him have the picture though?
It may be a real issue in the sense that huge numbers of people care about it, but why do they care? How many people would care about the abortion laws in states where they don’t live, if the media wasn’t telling them that they should? The “abortion debate” is 100% manufactured by politicians and the media. Without the incredibly huge resources devoted to propagandizing both sides in opposite directions, it would not exist.
I agree that it’s become a litmus test issue, but that doesn’t make it any less of a real issue in general, or less for those to whom it is a life or death issue.
Elizabeth Warren: “I don’t believe that the minority should have the ability to block things that the majority want to do”
So an enemy of social justice then.
Another time-wasting clownshow.
I’m not an attorney, I am a physician. Being old enough to remember back-alley abortions, I do not want abortions banned. On the other hand, I do not support infanticide either, and the viability marker keeps moving earlier and earlier. Abortion is a medical procedure, so is the care of a premature infant. Every abortion facility should have the capability to support an aborted infant that manifests life by spontaneous breathing, until that infant can be transferred to an appropriate facility. Premature infants, born via abortion but technically “alive” should not be euthanized by neglect.
What really bothers me is the general flippancy towards abortion, as though it is a brief, unremarkable event, simply vacuuming out a few clusters of cells. If you really believe that, you’ve never seen one performed. One has to be heartless, or intellectually challenged, not to see the tragedy for all involved.
I also wish someone could explain what the legal status of a pre-birth infant would be, had this legislation been passed. Currently, killing a pregnant woman is often charged as a double homicide if the pre-birth infant dies as a result (the usual outcome). How could that continue, if the woman, and her doctor, have the right to terminate that infant, even moments before natural birth, on the grounds of the mother’s mental health? Doesn’t this essentially legalize medical infanticide?’