What the Democrats mean by 'codifying Roe'


On Wednesday, a majority of the U.S. Senate — all 50 GOP senators plus West Virginia Democrat Joe Manchin — shot down a barbaric abortion bill that would enshrine in federal law a virtually unlimited right to abortion through all nine months of pregnancy in all 50 states. The deceptively named Women’s Health Protection Act (WHPA) would also wipe away nearly all state laws discouraging and regulating abortion — including many laws that have been permitted under Roe v. Wade.

Democratic leaders openly admit they held their second failed vote on the same radical abortion bill in the span of ten weeks because they want to campaign this fall on support for Roe. But they desperately want to avoid any discussion of what their bill actually does.

When Democrats in Washington speak of “codifying Roe,” what they mean in plain English is protecting a right to kill a baby through all nine months for virtually any reason. The WHPA creates an absolute right to abortion through the first five to six months of pregnancy, and it mandates legal abortion after viability until birth whenever a lone health-care provider — a term not limited to doctors — determines that the continuation of the pregnancy “would pose a risk” to the patient’s life or “health.” The WHPA’s chief sponsor in the Senate has acknowledged the legislation “doesn’t distinguish” between physical and mental health, and the text of the bill instructs the courts to “liberally construe” the provisions of the act. Courts would therefore look to the definition of “health” found in Roe’s companion case, Doe v. Bolton: “physical, emotional, psychological, familial, and the woman’s age. . . . All these factors may relate to health.”

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The WHPA manages to go beyond the radicalism of Roe in many respects. “Make no mistake. It is not Roe v. Wade codification,” Senator Manchin told reporters on Wednesday. “It wipes 500 state laws off the books. It expands abortion.”

The WHPA would supersede any federal or state law in conflict with it, including long-standing conscience laws protecting health-care workers and the Religious Freedom Restoration Act.

The WHPA would invalidate laws requiring 24-hour waiting periods before an abortion; laws requiring that abortion facilities provide information about adoption to pregnant women; laws requiring parental consent or parental notification before a minor obtains an abortion; and even some state laws banning partial-birth abortion. Many of these have been previously upheld by the Supreme Court under Roe and Planned Parenthood v. Casey.

Courts could rule that the WHPA mandates taxpayer-funded abortions, but Democrats have made it clear they would enact the policy with separate legislation if needed.

The bill that supposedly protects women’s health protects sex-selective abortion — the practice of aborting a baby girl simply because a boy is wanted — and would forbid states to enact the kind of health and safety regulations meant to protect women from the likes of the butcher Kermit Gosnell. It would therefore eliminate both the “safe” and “rare” portions of Bill Clinton’s onetime “safe, legal, and rare” formulation.

If Democrats want to campaign on this radical abortion bill, Republicans should welcome the challenge. But pro-life candidates and activists should expect no help from the mainstream media in explaining what Democrats really mean when they speak of codifying Roe. They will need to convey this information to voters themselves. While going on offense is essential, pro-life Republicans can’t merely point to Democratic extremism: They must also be able to defend their own agenda, an agenda that should take into account the views of the American people.

Joe Manchin deserves credit for breaking with his party and voting against the WHPA, but his statement on Wednesday expressing support for a “clean” bill codifying Roe is a grave error. No one who is pro-life should endorse a federal right to abortion. Manchin’s position is at odds with the people of West Virginia, whose duly elected representatives in the statehouse made it clear this year they want, at the very least, a 15-week limit on abortion. According to Gallup polling, two-thirds of Americans think abortion should be illegal after the first three months of pregnancy.

Roe itself is a radical policy that makes the United States one of seven nations — a list that includes North Korea, Vietnam, and Communist China — that allow elective abortion later than 20 weeks of pregnancy. Republican senators Lisa Murkowski and Susan Collins also deserve credit for opposing the WHPA, but their bill to turn Roe into a federal law would keep all 50 states in that shameful club. The Collins-Murkowski bill also mandates an undefined “health” exception for abortions after a baby can survive outside the womb.

Pro-life advocates have every reason to point out the ways the Democratic agenda on abortion goes beyond Roe — from taxpayer funding of abortion to gutting conscience laws and more. This is the agenda Democrats would enact if they hold the House and pick up the two Senate seats they need to nix the filibuster. But no one should lose sight of the fact that Roe itself is extreme.

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