Nothing is more unnerving than a “Plan B.” The Donner Party Shortcut, the Iran-Contra Affair, the Jan. 6 riot — all instances of a “Plan B.” When people don’t get what they want, they often have a default plan based on pure panic and impunity.
When the Supreme Court ruled on Friday that it would not enjoin the Texas abortion law, the White House immediately called for the Senate to pass the Women’s Health Protection Act (WHPA) to secure the rights currently guaranteed under the Constitution. While widely portrayed in the media as codifying Roe v. Wade, this legislation actually goes far beyond the current precedent of the Supreme Court and would effectively wipe out many state laws and state authority on abortion.
The outcry after the Court’s decision was captured in a dissent by Associate Justice Sonia Sotomayor, who decried the “madness” of allowing the Texas law to remain in effect pending lower court reviews; she even compared the Texas law to the conflicts leading to the Civil War.
If anyone wondered if Sotomayor had a Plan B in mind, they just had to follow her public comments. The justice recently called upon students to campaign against abortion laws in anticipation of abortion cases this term, declaring: “You know, I can’t change Texas’s law, but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”
The surprise over the Supreme Court’s procedural decision is itself surprising. This result was precisely what some of us expected when the litigants asked for an injunction just weeks after these same justices rejected an injunction of the same law. Moreover, the justices agreed that the law could be challenged as a “pre-enforcement” action against some of the private parties.
The Court will now proceed to consider these issues in the pending case of Dobbs v. Jackson Women’s Health Organization, the Mississippi case that is likely to reframe or reverse Roe. Yet, many believe the Court will preserve Roe’s protection of a constitutional right to abortion while allowing states to exercise greater authority to legislate in the area, particularly during the “pre-viability period.”
So, why the push for Plan B before the Court rules? The reason is that the WHPA is not a simple codification but a potentially massive expansion of Roe and its successor case, Planned Parenthood of Southeastern Pennsylvania v. Casey. It seeks to accomplish legislatively what could not be accomplished judicially for decades. Putting aside possible constitutional problems in effectively taking over the entire field of abortion rights from the states, the WHPA’s provisions read like a progressive wish-list based on pages of legislative “findings.” It declares the “violent legacy” of “restrictions on reproductive health, including abortion … [that] perpetuate systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism.”
The WHPA — narrowly passed in the House, 218-211, on Sept. 24 — was actually proposed in 2013, long before either the Mississippi or Texas laws were enacted. It would wipe away the precedent following Roe that allowed states to legislate conditions and limitations on abortions. Since then, states have used that precedent to enact hundreds of laws on abortions. There are legitimate objections to some of these laws; however, if Congress is going to preempt state laws, it should be honest with voters that this is an expansion (rather than a codification) of the status quo of Roe.
The precedent under Roe and its successor cases bars states from imposing an undue burden on the right to an abortion, or laws that have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." That can be stated in a couple lines. But the WHPA would superficially track constitutional language while adopting other undefined or sweeping terms.
It bars any limitation or requirement that “expressly, effectively, implicitly, or as implemented singles out” and “impedes access to” abortion. Any state law would need to show — by clear and convincing evidence — that it “significantly advances the safety of abortion services or the health of patients,” and that such safety “cannot be advanced by a less restrictive alternative measure.”
Conversely, a law can “impede” abortion rights under seven broad standards — including any conditions that are “reasonably likely to directly or indirectly increase the cost of providing … or obtaining abortion services (including costs associated with travel, childcare, or time off work),” that “deters some patients.” It also impedes the right if it causes “a trip to the offices of a health care provider that would not otherwise be required.”
Under the WHPA, no law could countermand a health-care provider who believes “continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.” The term “health” is not defined, and such terms are required to be “liberally construed” under the law. The law could be read as preempting certain late-term abortion laws and other limits.
The WHPA would make it more difficult to establish waiting periods under current state laws. Laws requiring the involvement of licensed physicians could be struck down, too, since the key “health care provider” definition includes a “certified nurse-midwife, nurse practitioner, and physician assistant.”
These are important issues that are worthy of debate. Indeed, they are the types of definitions, procedures and standards that have resulted in different approaches among the states under the current post-Roe precedent — laws that could be preempted under the WHPA.
The calls to “codify Roe” with the WHPA falsely suggest that this law merely preserves the status quo. It does not. However, the drafters are aware that many pro-choice voters also support existing bans on late-term abortions and other limitations. A recent poll shows that, while a strong majority opposes overturning Roe, a greater number of respondents (37 percent) supported the 15-week limit in Dobbs than opposed it (32 percent). Today’s array of state laws reflect those different views, which could be largely set aside by the WHPA, causing even greater political divisions in the country.
In that sense, the WHPA would capture one aspect of Roe: The late Justice Ruth Bader GinsburgRuth Bader GinsburgSupreme Court just added affirmative action to its list of conservative unfinished business Biden says Roe v. Wade under attack like 'never before' Second gentleman Emhoff acts as public link to White House MORE famously criticized Roe as a “heavy-handed judicial intervention … difficult to justify.” Congress could now replace Roe with an even heavier-handed legislative intervention.
Justice Sotomayor warned that, by not enjoining the Texas law, “I doubt the Court, let alone the country, is prepared for [the consequences].” The same may be true about this “Plan B.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.