In the late hours on the first night of Sept. 1, the Supreme Court allowed Texas’s law banning abortion after six weeks of pregnancy to go into effect. The decision leaves the door open for further litigation, but in the meantime, the consequences have been disastrous. Abortion services have ground to a near-halt in Texas, depriving thousands of people of access to a vital form of healthcare. The decision was a legal travesty, best summed up by a line in Justice Sonia Sotomayor’s sharp dissent — “a majority of Justices have opted to bury their heads in the sand.”
Yet for all the focus on the Court’s ruling — and what it may mean for long-standing rulings like Roe v. Wade and Planned Parenthood v. Casey — there has been little emphasis on the most obvious place to solve the issue: Congress. Indeed, the legislative branch has the power to enshrine abortion rights through a civil rights law. The Senate and House, both under Democratic control, should act immediately to codify a positive right to abortion; failing to do so would leave the health and autonomy of millions to fickle court precedents.
Since the landmark 1973 Roe decision, the federal judiciary has served as the final backstop for abortion rights. Yet, despite the tremendous significance the case has accumulated in the past 58 years, it’s worth keeping in mind what it really is — a judicial opinion that has been whittled away by successively more conservative courts. Supreme Court precedent, under the 1992 Casey decision, merely protects against an “undue burden” on receiving abortion. Many states have thus sought to push the envelope on what restrictions are allowed, slowly degrading the right to choose. These repeated attempts to restrict abortion rights have resulted in high hurdles to receiving care — for instance, six states have just one abortion clinic. Texas is simply the latest, boldest example — abandoning the previous approach of piecemeal restrictions in exchange for effectively banning the procedure.
Without action, the United States risks imposing an incredible injustice on hundreds of thousands of women forced to carry an unwanted pregnancy to term. Additionally, this burden will likely fall disproportionately on the poor and vulnerable, as the wealthy have more means to travel to a a state in which abortions are legal and accessible. If we continue to rely on courts to protect abortion rights, large swaths of the U.S. risk a tremendous backslide.
Democratic-controlled legislatures across the country have recognized this approaching reality — in the late 2010s, a number of liberal states moved to repeal their old laws banning abortion, which would come back into effect if the Supreme Court ever decides to overturn Roe. A handful of states have gone even further, enshrining a positive right to abortion in their laws or newly requiring Medicaid funding to be available for abortion procedures.
Congress must follow these states on the federal level and pass legislation to protect abortion access. Such a law would make Roe welcomely redundant, setting in stone the right to abortions and preventing states from adopting laws like those in Texas or Mississippi — the latter of which’s law banning abortion at 15 weeks is up for review by the Supreme Court later this fall. A proposed bill already exists for this direct purpose; the Women’s Health Protection Act, which is sponsored by the vast majority of Democrats in both the Senate and the House. Using Congress’s regulatory powers, the act codifies the right for care providers to provide abortions and for patients to receive them — thus pre-empting any restrictions states may try to enact. The law bans medically-irrelevant restrictions such as waiting periods before abortion, protecting against subsequent piecemeal erosion of the right to choose.
In other campaigns for civil rights, though the courts played their role, legislation from Congress was ultimately responsible for strengthening protections. Brown v. Board may have helped to kickstart the Civil Rights era, but the Civil Rights Act of 1964 and Voting Rights Act of 1965 were needed to expand democracy in segregationist states. Additionally, some of the most important protections against sex discrimination — Title VII and Title IX — were enacted by Congress. Federal legislation has been vital to expanding rights in this country. Yet when it has come to abortion, Congress has sat by and let increasingly shaky judicial precedents form the basis for access to essential healthcare and the right to bodily autonomy for millions of women.
Admittedly, congressional statutes have their own limitations. A mere right to abortion would not instantly solve the problems of access across the country. There’s also no way to stop a future Republican-controlled Congress from repealing a law protecting abortion rights — although such a move would likely face intense political headwinds, given the high level of public support for abortion rights. Even in this current Congress, the Women’s Health Protection Act faces many obstacles, likely requiring the votes of pro-choice Republican moderates like Lisa Murkowski and Susan Collins — and thus could fall short of the 60 votes needed to break a filibuster.
Yet, this moment — the most trying test of abortion rights in the 50 years since Roe — demands every effort possible. With a narrow Supreme Court majority clearly unwilling to defend the right to choose, congressional Democrats must act to get legislation protecting abortion rights across the finish line and into law. For politicians who claim to support abortion rights, it is now or never to demonstrate a true commitment to health access and autonomy.