Beware of Plan Bs: The White House Push to ‘Codify Roe’ Goes Far Beyond the Status Quo

Below is my column in The Hill on the call by the Biden White House and many in the media to pass the Women’s Health Protection Act (WHPA) in light of the recent decision of the Supreme Court not to enjoin the new abortion law in Texas. The WHPA is routinely described in the media as a “codification of Roe,” the description used by the White House and many Democratic sponsors. It is not. It is in fact what many pro-choice advocates have always wanted Roe to be but have been unsuccessful in establishing through the court system. There are legitimate issues raised by the bill but the sponsors should not hoodwink voters by claiming that this merely codifies the status quo of Roe.

Here is the column:

Nothing is more unnerving than a “Plan B.” The Donner Party Shortcut, the Iran-Contra Affair, the Jan. 6 rally-to-riot — all “Plan Bs.” When people don’t get what they want, they often have a default plan that is based on a mix of pure panic and impunity.

When the Supreme Court ruled on Friday that it would not enjoin the Texas abortion law, the White House immediately called for the Senate to pass the Women’s Health Protection Act (WHPA) to secure the rights currently guaranteed under the Constitution. While widely portrayed in the media as “codifying Roe v. Wade,” this legislation actually goes far beyond the current precedent of the Supreme Court and would effectively wipe out many state laws and state authority on abortion.

The outcry after the Court’s decision was captured in a dissent by Associate Justice Sonia Sotomayor, who decried the “madness” of allowing the Texas law to remain in effect pending lower court reviews; she even compared the Texas law to the conflicts leading to the Civil War.

Sotomayor encouraged advocates not to wait for any decision of the Court.  The justice recently called upon students to campaign against abortion laws in anticipation of abortion cases this term, declaring: “You know, I can’t change Texas’s law, but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”

The surprise over the Supreme Court’s procedural decision is itself surprising. This result was precisely what some of us expected when the litigants asked for an injunction just weeks after these same justices rejected an injunction of the same law. Moreover, the justices agreed that the law could be challenged as a “pre-enforcement” action against some of the private parties.

The Court will now proceed to consider these issues in the pending case of Dobbs v. Jackson Women’s Health Organization, the Mississippi case that is likely to reframe or reverse Roe. Yet, many believe the Court will preserve Roe’s protection of a constitutional right to abortion while allowing states to exercise greater authority to legislate in the area, particularly during the “pre-viability period.”

So, why the push for Plan B before the Court rules? The reason is that the WHPA is not a simple codification but a potentially massive expansion of Roe and its successor case, Planned Parenthood of Southeastern Pennsylvania v. Casey. It seeks to accomplish legislatively what could not be accomplished judicially for decades. Putting aside possible constitutional problems in effectively taking over the entire field of abortion rights from the states, the WHPA’s provisions read like a progressive wish-list based on pages of legislative “findings.” It declares the “violent legacy” of “restrictions on reproductive health, including abortion … [that] perpetuate systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism.”

The WHPA — narrowly passed in the House, 218-211, on Sept. 24 — was actually proposed in 2013, long before either the Mississippi or Texas laws were enacted. It would wipe away the precedent following Roe where states did impose legislate conditions and limitations on abortions within the constitutional framework laid out by the Court. Since 1973, states have used that precedent to enact hundreds of laws on abortions.

There are legitimate objections to some of these laws. However, if Congress is going to preempt state laws, it should be honest with voters that this an expansion (rather than a codification) of the status quo of Roe.

The precedent under Roe and its successor cases bars states from imposing an undue burden on the right to an abortion, or laws that have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” That can be stated in a couple lines. But the WHPA would superficially track constitutional language while adopting other undefined or sweeping terms.

It bars any limitation or requirement that “expressly, effectively, implicitly, or as implemented singles out” and “impedes access to” abortion. Any state law would need to show — by clear and convincing evidence — that it “significantly advances the safety of abortion services or the health of patients,” and that such safety “cannot be advanced by a less restrictive alternative measure.”

Conversely, a law can “impede” abortion rights under seven broad standards — including any conditions that are “reasonably likely to directly or indirectly increase the cost of providing … or obtaining abortion services (including costs associated with travel, childcare, or time off work),” that “deters some patients.” It also impedes the right if it causes “a trip to the offices of a health care provider that would not otherwise be required.”

Under the WHPA, no law could countermand a health-care provider who believes “continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.” The term “health” is not defined and such terms are required to be “liberally construed” under the law. The law could be read as preempting certain late term abortion laws and other limits.

The WHPA could make it more difficult to establish waiting periods under current state laws. Laws requiring the involvement of licensed physicians could be struck down, too, since the key “health care provider” definition includes a “certified nurse-midwife, nurse practitioner, and physician assistant.”

These are important issues that are worthy of debate. Indeed, they are the types of definitions, procedures and standards that have resulted in different approaches among the states under the current post-Roe precedent — laws that could be preempted under the WHPA.

The calls to “codify Roe” with the WHPA falsely suggest that this law merely preserves the status quo. It does not. However, the drafters are aware that many pro-choice voters also support existing bans on late-term abortions and other limitations. A recent poll shows that, while a strong majority opposes overturning Roe, a greater number of respondents (37 percent) supported the 15-week limit in Dobbs than opposed it (32 percent). Today’s array of state laws reflects those different views, which could be largely set aside by the WHPA — causing even greater political divisions in the country.

In that sense, the WHPA would capture one aspect of Roe: The late Justice Ruth Bader Ginsburg famously criticized Roe as a “heavy-handed judicial intervention … difficult to justify.” Congress could now replace Roe with an even heavier-handed legislative intervention.

Justice Sotomayor warned that, by not enjoining the Texas law, “I doubt the Court, let alone the country, is prepared for [the consequences].” The same may be true about this “Plan B.”

112 thoughts on “Beware of Plan Bs: The White House Push to ‘Codify Roe’ Goes Far Beyond the Status Quo”

    1. Maybe. I carried 4 kids. Pregnancy takes a toll for sure. But the fact is I got knocked up. So it comes to the moment….Yet sex ed is taught.. So it’s pretty much foreseeable. Like drunk driving. Don’t want the consequences…then don’t do it.. …most the women getting abortions know exactly why they are there for one….Because they weren’t responsible…..they were victims of their sex drive. B.s.. Be responsible….and stop being an animal. Be human. All the way.

  1. Anonymous the Stupid, it seems when they took out Ben’s garbage to the trash, they also took out yours. I like the cleanliness of this blog. All the waste products are removed by taking out the trash but unfortunately, you keep messing up the place.

    >> “I already told you, The definition is: the status of being a person.

    >If you don’t understand that that’s a definition, when it literally says it’s the definition, you’ve got problems.”

    You assume personhood and person are identical, while you falsely claim you understand the legal definition of the word person. You don’t.

    On the one hand, you also say that corporations have personhood because they can legally be considered persons.

    On the other hand, two black people (slavery pre-1865) together produce a child who never has personhood since the law considers the offspring chattel. Your wordplay is disgusting as it shows contempt for the existence of some humans. In a way, it is nazi-like.

    You are caught repeating yourself repeatedly because you claim there is a legal definition for personhood, yet you cannot produce one.

  2. If the Supreme Court rules that there’s no constitutional right to abortion, how would federal legislation on the matter overriding state law be constitutional?

  3. “Embryos aren’t persons.”

    The offspring of two bonafide persons is a person no matter the stage of development.

  4. Professor Turley Writes:

    It bars any limitation or requirement that “expressly, effectively, implicitly, or as implemented singles out” and “impedes access to” abortion. Any state law would need to show — by clear and convincing evidence — that it “significantly advances the safety of abortion services or the health of patients,” and that such safety “cannot be advanced by a less restrictive alternative measure.”
    ……………………………………………………………..

    This section of ‘the code’ essentially prempts TRAP laws (Targeted Restrictions On Abortion Providers). For decades Republican legislatures have been writing bogus statues to impede abortion access by forcing women and providers to jump through endless hoops. The vast majority of these laws have nothing to do with medical safety. Their only purpose is to harass, harass, harass!

    One of the most common TRAP laws concerns a requirement that doctors have ‘Admitting Privileges’ to the nearest hospital. This may sound reasonable to the uninformed. But the truth is very few abortion patients ever need tranfers to hospitals. Abortions are, in fact, relatively safe, medical procedures.

    Secondly, no hospital anywhere can deny treatment to patients because their doctors lack ‘Admitting Privileges’. The only purpose of this law is to limit, as much as possible, the number of abortion providers. It’s a TRAP law, pure and simple. No medical purpose!

    1. “. . . forcing women and providers to jump through endless hoops. [. . .] Their only purpose is to harass, harass, harass!”

      Yep. They took a page out of the Left’s fascist handbook:

      Don’t outright usurp a right, e.g., the right to property, to contract, to associate. Leave individuals with that “right,” but in name or title, only. Use government to make it onerous to use that right, to act on it (e.g., by bureaucratic decrees, permit processes, regulations, and fees). Let the government so thoroughly harass an individual, that he finally surrenders and declares: “Screw it. This ‘right” ain’t worth it. You can have them all.”

      Not pleasant, is it? What conservatives are doing is despicable. But, ultimately, blame for this fascist tactic is squarely on the shoulders of the Left.

  5. Commenter Mespo Writes:

    “We should acknowledge that abortion is the linchpin issue of the far Left. Without it, the coalition of feminists, LGBTHIJKLMONOP, anachists, antifa, BLM, NEA and the other poisonous alphabet soup falls apart”.
    ………………………………………………………….

    Here Mespo provides an illuminating window into far-right thinking. The abortion is not really about ‘life’ (as if we ever thought it was). The issue is really about SPITE; especially towards women identifying as feminists. The Anti-Abortion movement is totally driven by a malicious desire to put feminists ‘in their place’.

    1. I do not support abortion, but disagreement should not translate into spite or meanness. That crosses the line of respect. I for one don’t mean to come off as spiteful and/or vengeful of feminists, and I am sorry if this is how I come off as.

  6. The current standard of viability is based on a politically congruent myth. A baby is viable with a heartbeat, a coherent nervous system, earlier with successful implantation.

    There is no mystery in sex and conception. A woman and man have four choices: abstention, prevention, adoption (better dead?), and compassion. A life should not be aborted for social, redistributive, and fair weather causes. The Pro-Choice religion denies women and men’s dignity and agency, and progresses human life as a negotiable commodity.

    The Jan 6 riot (“disorder”) was forced by an elective abortion of an unarmed woman in a prone position and an invitation surreptitiously withdrawn by the Capitol Hill police with a segue to assault the people assembled.

  7. If the good professor were even nearly as conservative, FOX-loyal, partisan as some of these posts suggest, he would have entitled his post, “Beware of Plan B.S.”

  8. “The Donner Party Shortcut” – Gotta admit I chucked at that one. As for Roe, it gone. It will linger in some form or another but pratically speaking, it’s over given the recent opinions and the number of states poised to protect the unborn.

    We should acknowledge that abortion is the linchpin issue of the far Left. Without it, the coalition of feminists, LGBTHIJKLMONOP, anachists, antifa, BLM, NEA and the other poisonous alphabet soup falls apart. It’s the one issue they agree on totally and without reservation. Let the infighting on the other stuff begin. I say farwell Roe! When the Left falls apart as they will, we can only hope that their final thought is that Donald Trump appointed the majority that gutted abortion and sealed their fate. Orange Man Bad(ass)!

    1. “We should acknowledge that abortion is the linchpin issue of the far Left. Without it, the coalition of feminists, LGBTHIJKLMONOP, anachists, antifa, BLM, NEA and the other poisonous alphabet soup falls apart.”

      – Mespo
      _______

      I like to think we’ll be left with only the Constitution.

      Oh, Happy Day!

  9. ABORTION IS CODIFIED AS HOMICIDE
    _______________________________

    Abortion terminates and abrogates the post-24-hour-fertilization zygote, embryo, fetus and infant, aka man.

    Abortion kills a man.

    Killing a man is homicide.

    Homicide is a crime.

    Abortion is homicide.

    Abortion is a crime.
    _______________

    homo – man

    cidium – act of killing
    ________________

    homicide (n.)

    “the killing of another person,” early 13c., from Old French homicide, from Latin homicidium “manslaughter,” from homo “man” (see homunculus) + -cidium “act of killing,” from caedere “to kill, to cut down” (from PIE root *kae-id- “to strike”).

  10. More of Turley’s blah, blah, blah. The majority of Americans support a woman’s right to choose. The majority of Americans do not have the same ultra-right-wing views of the three judges appointed by the election cheater after being vetted by the Federalist Society specifically for their anti-abortion views. The majority of Americans trust women and their physicians to decide what is best in each give case, instead of delegating the decision about a woman’s destiny to state legislatures that are overwhelmingly male. Opposition to abortion is based on religious beliefs that everyone does not share, and in a free, democratic country, should not be forced on anyone. The point at which life begins and is entitled to protection by the state is debatable by people of good faith, except when it comes to religious zealots who think they have the right to shove their beliefs down everyone’s throats because it is part of their faith. Abortion rights are based on the Constitutional right to privacy, and the Constitution is not subject to state interpretation. Opposing abortion gets the Evangelicals to the polls in droves, goaded by their religious leaders, who tell them that the blobs of tissues they are “saving” are “unborn babies”. Cynical Republicans take advantage of these beliefs to get people to polls mostly so they can keep or pass laws reducing taxes for the wealthy and corporations and to reduce or eliminate consumer and environmental protections, which is their real agenda. Regardless of what the SCOTUS does, women of means will still get safe, medical abortions. Those without means will resort to self-help and many will needlessly die.

    1. Then why are you breathlessly following and reading Turley’s blah blah blah everyday? Methinks you are not interested in the SUBJECT of the blog, but rather, interested in seeing your own comments in print.

    2. It has come to this.

      45% of people in America DO NOT PAY TAXES.

      And yet, they are allowed to vote.

      They obtain REPRESENTATION WITHOUT TAXATION.

      Might that be considered anomalous and the inverse of the American thesis?
      ____________________________________________________________

      The Founders established a restricted-vote republic, distinctly not a one man, one vote democrazy.

      Turnout was 11.6% in 1788, by design. Voters must have been male, European, 21 with 50 lbs. Sterling/50 acres. Citizens must have been “…free white person(s)….”

      The Naturalization Act of 1802 was in full force and effect on January 1, 1863.
      _____________________________________________________________

      “the people are nothing but a great beast…

      I have learned to hold popular opinion of no value.”

      – Alexander Hamilton
      _________________

      “The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”

      “If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”

      – Alexander Hamilton, The Farmer Refuted, 1775
      _______________________________________

      Whatever went wrong?

      The Supreme Court failed to fulfill its duty and strictly adhere to its sworn oath to SUPPORT the Constitution.

      America persisted for 71 years and has been unconstitutional and illegitimate since 1860.
      ______________________________________________________________________

      You are in America and you disparage and loathe its Founders, its Constitution and its very existence.

      Where is your allegiance? Where is your fealty? It is, most certainly, not in this country.

      What is a person with no allegiance and no fealty to the country he is in, an apostate, a defector, a traitor?

      The Israelite slaves were out of Egypt before the ink was dry on their release papers; but then, they had cognitive capacity and acumen sufficient to the task.

        1. “45% of Americans pay no federal income tax”

          Many Americans don’t have to worry about giving Uncle Sam part of their hard-earned cash for their income taxes this year. An estimated 45.3% of American households — roughly 77.5 million — will pay no federal individual income tax, according to data for the 2015 tax year from the Tax Policy Center, a nonpartisan Washington-based research group. Roughly half pay no federal income tax because they have no taxable income, and the other roughly half get enough tax breaks to erase their tax liability, explains Roberton Williams, a senior fellow at the Tax Policy Center. Despite the fact that rich people paying little in the way of income taxes makes plenty of headlines, this is the exception to the rule: The top 1% of taxpayers pay a higher effective income-tax rate than any other group (around 23%, according to a report released by the Tax Policy Center in 2014) — nearly seven times higher than those in the bottom 50%. On average, those in the bottom 40% of the income spectrum end up getting money from the government. Meanwhile, the richest 20% of Americans, by far, pay the most in income taxes, forking over nearly 87% of all the income tax collected by Uncle Sam.

          – Catey Hill, MarketWatch

      1. George, perhaps you should change residence to one of those tyrannical despostic authoritarian nations where your brand of thinking makes a much better fit.

    3. A woman has the right to choose. She can choose NOT to become pregnant and there is no need for abortion. There are so many many options that make it possible to control whether or not pregnancy occurs. Can’t say that religious beliefs prevent the use of this or that contraceptive because anyone who would get an abortion can use any type of contraceptive.

      Abortion is not in the Constitution. There is NO right to this procedure. Yes, a woman has a right to control her body but not to decide to kill another life because it interferes with hers. Her choice was to keep this from happening. Killing is killing regardless of whether the baby is tiny or fully developed.

      If a person went out and sprayed poison on a farmer’s crop or plowed it under when the harvest was just days or weeks away, he would be found guilty of killing the farmer’s crops. If you destroy(abort) a growing person you are guilty of killing that person.

      1. And if the woman is incapacitated, misled, intoxicated, sedated, manipulated, mentally handicapped, overpowered, unconscious, semiconscious, terrified, irresponsible, blackmailed, extorted, hysterical, etc., she is nevertheless fully capable of choosing to conceive, bear, birth and raise a child and if she refuses the bearing and birthing she becomes guilty of a capital crime and destined to join her equally unfortunate sisters in filling up our prisons?

      2. “Abortion is not in the Constitution. There is NO right to this procedure.”

        Name a single medical procedure that is named in the Constitution. Since there are none named, by your twisted understanding of the Constitution, you have no “right” to any medical procedure.

        You need to understand the *purpose* of our Constitution — as opposed to the one that you wish exists, so that you can justify banning abortion.

Leave a Reply to George Cancel reply