Pro-Choice Lawmakers Have Finally Joined the 21st Century

A bill to codify Roe v. Wade incorporates the Reproductive Justice human rights framework for the first time ever.

Photo: Pro-choice sign outside the U.S. Supreme Court. (Robin Marty/Flickr)

Yesterday, members of Congress re-introduced a bill that would protect abortion access in the U.S. even if the Supreme Court overturns or drastically weakens Roe v. Wade—as it very likely will do when it hears a case about Mississippi’s 15-week abortion ban in the fall. The bill faces an uphill battle in getting passed, but it contains intersectional language worth celebrating.

Some quick background: The bill is called the Women’s Health Protection Act (WHPA) and it would create a federal right for pregnant people to access abortion, and for providers to deliver that care, free from medically unnecessary restrictions. Specifically, it would outlaw mandatory waiting periods, mandatory ultrasounds, biased pre-procedure counseling, hospital admitting privileges, bans on prescribing abortion pills via telemedicine, and abortion bans prior to fetal viability. WHPA would make Mississippi’s ban illegal. Notably, the bill does not address insurance coverage of abortion, which limits access; separate legislation called the EACH Act (Equal Access to Abortion Coverage in Health Insurance) would address that barrier. It’s also not clear that states wouldn’t sue over a federal abortion law despite the Supremacy Clause, as Elie Mystal has noted.

Those barriers and limitations aside, I wanted to highlight that the text of the bill incorporates the language of reproductive justice for the first time since it was introduced in November 2013. Reproductive justice (RJ) is a human rights framework created by Black women in 1994 that goes beyond the concept of a right to abortion by saying that people have the right to have children, not have children, and raise their families in safe communities. I don’t know who wrote the bill but a coalition of RJ groups sent a letter supporting it. RJ groups have been working for years to expand people’s understanding of the harms of abortion restrictions and recently celebrated a messaging victory in holding President Biden to his word to end a ban on Medicaid covering abortions.

Below is text from the “findings and purpose” section of the Women’s Health Protection Act that has not appeared in any previous version of the bill. It acknowledges that abortion restrictions are violent and oppressive tactics that fit in with the history of enslavement, medical experimentation, and forced sterilization in the U.S and that current laws fall hardest on Black people, Indigenous people, and other people of color. The bill also notes that it isn’t only cisgender women who can get pregnant.

Here’s what it says:

(4) Reproductive Justice requires every individual to have the right to make their own decisions about having children regardless of their circumstances and without interference and discrimination. Reproductive Justice is a human right that can and will be achieved when all people, regardless of actual or perceived race, color, national origin, immigration status, sex (including gender identity, sex stereotyping, or sexual orientation), age, or disability status have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination.

(5) Reproductive Justice seeks to address restrictions on reproductive health, including abortion, that perpetuate systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism. This violent legacy has manifested in policies including enslavement, rape, and experimentation on Black women; forced sterilizations; medical experimentation on low-income women’s reproductive systems; and the forcible removal of Indigenous children. Access to equitable reproductive health care, including abortion services, has always been deficient in the United States for Black, Indigenous, and other People of Color (BIPOC) and their families. 

(6) The legacy of restrictions on reproductive health, rights, and justice is not a dated vestige of a dark history. Presently, the harms of abortion-specific restrictions fall especially heavily on people with low incomes, BIPOC, immigrants, young people, people with disabilities, and those living in rural and other medically underserved areas. Abortion-specific restrictions are even more compounded by the ongoing criminalization of people who are pregnant, including those who are incarcerated, living with HIV, or with substance-use disorders. These communities already experience health disparities due to social, political, and environmental inequities, and restrictions on abortion services exacerbate these harms. Removing medically unjustified restrictions on abortion services would constitute one important step on the path toward realizing Reproductive Justice by ensuring that the full range of reproductive health care is accessible to all who need it. 

(7) Abortion-specific restrictions are a tool of gender oppression, as they target health care services that are used primarily by women. These paternalistic restrictions rely on and reinforce harmful stereotypes about gender roles, women’s decision making, and women’s need for protection instead of support, undermining their ability to control their own lives and well-being. These restrictions harm the basic autonomy, dignity, and equality of women, and their ability to participate in the social and economic life of the Nation. 

(8) The terms ‘‘woman’’ and ‘‘women’’ are used in this bill to reflect the identity of the majority of people targeted and affected by restrictions on abortion services, and to address squarely the targeted restrictions on abortion, which are rooted in misogyny. However, access to abortion services is critical to the health of every person capable of becoming pregnant. This Act is intended to protect all people with the capacity for pregnancy—cisgender women, transgender men, non-binary individuals, those who identify with a different gender, and others—who are unjustly harmed by restrictions on abortion services.

And with that progressive language intact, WHPA has 176 House co-sponsors and 48 Senate co-sponsors (the two Senators who didn’t sign on to sponsor are Bob Casey of Pennsylvania and, you guessed it, Joe Manchin of West Virginia.) This is the highest number of original co-sponsors since its 2013 introduction, when it had 132 in the House and 35 in the Senate.

The Women’s Health Protection Act would not fix everything and getting it passed would be a struggle. But this is the kind of intersectional analysis of reproductive health, inequality, and racism that is not only morally necessary, but can help shift opinion in favor of bodily autonomy for all.