Game Changer: Women’s Health Protection Act

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Senator Blumenthal speaking at the announcement of the Women’s Health Protection Act Used under Creative Commons licence. (c) Senate Democrats at http://flic.kr/p/hwcW9Y

“A republican legislature in any state almost, as soon as they get elected to run the state legislature, they start going on offense with a whole variety of ways of trying to restrict choice, or trying to ban abortion. You don’t see the same thing in reverse; which is to say, when Democrats take over a State, they’re not out there leading on this issue.”

Chris Hayes on msnbc. View full video here.

As the past few weeks in the various courts across the United States have shown, the current term of GOP run State legislatures have been pushing hard to curb women’s reproductive rights. Perhaps emboldened by the backing of the Tea Party movement, legislatures like Texas and Oklahoma have passed laws attempting to get around a woman’s Constitutional right to abortion when it comes to medical treatment as espoused by Roe v Wade. These attempts have included redefining the point at which a fetus is deemed to be viable on its own outside the womb (sometimes described as “personhood”), thus triggering what the US Supreme Court deemed a justifiable limit on the right to privacy when balanced with the state’s legitimate interest in the woman’s health and prenatal life once it is viable. This “legitimate interest in a woman’s health” has guided the rhetoric behind much of the recent law-making by Republican State legislatures, such as in Texas and Oklahoma, where laws allegedly intended to “protect women’s health” and enable them to make “informed choices” have resulted in unjustifiable limitations of women’s reproductive rights by placing an undue burden on women seeking abortions.

But the game has now changed. In addition to the judicial actions launched by tireless organizations like the Center for Reproductive Rights and Planned Parenthood to protect women’s rights, Democrats are no long only reacting to proposed laws but are going on the offensive with the Women’s Health Protection Act.

The Women’s Helath Protection Act (WHPA) was presented to the US Congress last Wednesday, 13 November, by Senators Richard Blumenthal (D-Conn), Tammy Baldwin (D-WI), and Representatives Judy Chu (D-CA), Marcia Fudge (D-OH) and Lois Frankel (D-FL).

The WHPA Bill aims to “protect a woman’s right to determine whether and when to bear child or end a pregnancy by limiting restrictions on the provision of abortion services”. Pivotally, the WHPA recognizes that:

Access to safe, legal abortion services is essential to women’s health and central to women’s ability to participate equally in the economic and social life of the United States.

This is an incredibly powerful statement: a piece of legislation that recognizes that not only is access to abortion services a matter of individual liberty and self-determination, but is fundamental to achieving women’s economic and social equality. This is so powerful, and reminiscent of then Secretary of State Hillary Clinton’s clear and resolute response to questions regarding reproductive healh services in foreign aid.

The core provisions of the WHPA act to prevent any legislation that attempts to bypass the women’s Constitutionally protected right to access an abortion through the imposition of burdensome administrative or regulatory requirements. These bypass laws have become increasingly common, such as recent cases highlighted on this site, such as in Texas and Oklahoma.

The WHPA sets out some examples of the kinds of requirements that would be unlawful:

  • Where a doctor is required to perform a test or particular procedure only in abortions, but not other comparative medical procedures;
  • Where an abortion provider is restricted from prescribing drugs based on good-faith medical d judgment;
  • Where an abortion provider’s ability to provide abortion services via telemedicine;
  • Any unique accreditations, resources, arrangements with hospitals, that is not imposed on medically comparable facilities;
  • Where a woman is required to make medically unnecessary appointments, either to the abortion provider or any other entity (such as a counsellor or religious advisor).

It is important to note that this is not an exclusive list, and any requirement imposed by a law that restricts women’s access to abortion services, in a manner not comparable with similar medical procedures, will also be deemed unlawful.

From a lawyer’s perspective, the WHPA also sets out burdens of proof in a manner that shifts the burden onto the government imposing the restriction. As a result, this attempts to address the risks that we’ve seen in Texas where the government was able to make a prima facie case that the requirements imposed in women were likely to be for their health, thus satisfying the burden of proof for the granting of a temporary injunction. Under the proposed law, a government would have to show that the measures “significantly” improve women’s health to successfully shift the presumption, with the burden requiring “clear and convincing evidence”. This is a higher evidentiary standard than on the balance of probabilities or preponderance of evidence.

There is a lot of great stuff in the WHPA; it is an act that takes into account all of the lessons learnt in the recent few years, and anticipates weaseling by anti-women’s rights legislatures. If this Bill passes, it will be historic, and put to rest the pain and angst suffered by women around the US facing uncertainty over their ability to access Constitutionally protected rights.

Key legal documents

Text of the WHPA Bill can be found here.

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