After Alabama Abortion Law, 3 Democrats Propose a New Strategy

Responding to a series of highly restrictive abortion laws aimed at overturning Roe v. Wade, several Democratic presidential candidates have called on Congress to codify abortion rights, signaling a newly aggressive approach in a debate whose terms have long been set by conservatives.

Senator Cory Booker of New Jersey was first out of the gate on Wednesday, telling BuzzFeed News that if elected president, he would pursue legislation to guarantee abortion rights nationwide, superseding state restrictions, even if the Supreme Court overturned Roe.

Senator Kirsten Gillibrand of New York promised the same on Thursday, and Senator Elizabeth Warren of Massachusetts came forward Friday morning with a more detailed plan. The three senators also called for repealing the Hyde Amendment, which prohibits federal funding for abortions.

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The vast Democratic field has been essentially unanimous in condemning the near-total abortion ban Alabama lawmakers passed on Tuesday, which is part of a string of state efforts to compel the Supreme Court to re-examine Roe v. Wade, the 1973 ruling that recognized a woman’s constitutional right to end a pregnancy.

But Mr. Booker, Ms. Gillibrand and Ms. Warren went significantly further than other candidates, calling for expanding access to abortion instead of just preserving existing access, which has already been eroded in many places.

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“I’ve had enough of being on defense,” Ms. Gillibrand wrote in an email to supporters on Thursday, vowing to codify Roe, repeal the Hyde Amendment, create a federal funding stream for abortion and other reproductive health care, and ensure that “no state can prevent private insurance from covering abortion.”

In an essay published Friday, Ms. Warren proposed legislation that would forbid states to interfere with abortion providers or access. She also called on Congress to prohibit state measures that do not technically restrict abortion services but make them harder to provide in practice, like laws that require providers to have hospital admitting privileges or regulate the width of clinics’ hallways.

Abortion opponents have been emboldened by the confirmation of Justice Brett M. Kavanaugh to replace Anthony M. Kennedy, who was considered a reliable vote to uphold Roe. It is because of Justice Kavanaugh, and the conservative majority he cemented on the Supreme Court, that legislators in states like Alabama, Georgia and Missouri are passing laws that explicitly violate Roe: They believe they have the votes now, for the first time, to overturn it.

Ms. Warren, Ms. Gillibrand and Mr. Booker argued that by passing a law affirming abortion rights, a future Democratic Congress could provide a backstop that would endure even if the justices overturned Roe. But such a law would almost certainly face its own legal challenges, and barring further changes in the court’s composition, it would have to survive review by that same conservative majority.

Acts of Congress supersede state laws, but the Constitution limits the sorts of laws Congress can pass. The main question for the courts would be whether Congress has the right to make laws about abortion.

Ms. Warren wrote that a law guaranteeing access to abortion would be legal under the Constitution’s commerce and equal protection clauses. But David S. Cohen, a law professor at Drexel University who studies abortion issues, said the commerce clause argument was probably the only viable one.

The clause gives Congress the authority to regulate commerce, a very broad term, and Professor Cohen said he believed it should apply to an abortion law. “The Supreme Court has given wide latitude to regulating commercial activities,” he said, “and abortion is a commercial activity because we pay money for it.”

He added, though, that some judges do not believe the clause applies to health care. This would be the crux of the debate.

The Supreme Court has found before that Congress can restrict abortions: Twelve years ago, it upheld a 2003 ban on a type of abortion performed late in pregnancy. But it is not a given that today’s court would uphold a law going in the other direction.

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