Abortion Heads to the Senate

“Senate Majority Leader Chuck Schumer has set a floor vote Wednesday on the Democrats’ bill to legalize abortion up until birth. It’ll fail, but the real point is to score points with the party’s base and (hopefully) with swing voters now leaning Republican.

Problem is, those groups are at odds on abortion, too…

Each side chooses its polls (and poll questions) to pretend it represents the majority, but the fact is that most who “support abortion rights” are mainly thinking of the first trimester (which is when the vast majority of abortions get done); relatively few back legal abortion in the third trimester.

That’s been so since the day the Supremes issued the Roe ruling, which is why neither extreme has ever had the votes in the House or Senate to pass a national abortion law in case the court overruled Roe (as it now seems likely to do).

The main thing that’s changed these last five decades is that Democrats became the “pro-choice” party, and Republicans the “pro-life” one, with middle ground increasingly scarce.

There are many recriminations that the Democrats didn’t “do something” since 1973 to legalize abortion, but it didn’t happen for the same reason Republicans didn’t legislatively ban abortion — neither side had enough of a majority to do so. There were pro-abortion rights Republicans and anti-abortion Democrats throughout those decades.

Maybe the middle ground on abortion will rise again in US national politics post-Roe, but it’ll take time for the politicians to move beyond symbolic gestures aimed at the extremes, and for the many voters who’ve stood quiet to speak up. Who knows? Once it does matter, some Americans may even change their minds.”

“Bill Clinton’s artful framing was that abortion should be “safe, legal and rare,” but that’s ancient history to today’s Democrats. The WHPA would guarantee abortion access “at any point or points in time prior to fetal viability,” about 23 weeks. Women seeking such services could not be asked to “disclose the patient’s reason”...

After fetal viability, the WHPA would assure a right to an abortion whenever the physician’s “good-faith medical judgment” is that “the pregnancy would pose a risk to the pregnant patient’s life or health.” What counts as “health”? This is sometimes defined to include mental, emotional or familial factors, a loophole that permits elective abortions, more or less, through all nine months of pregnancy…

A national abortion bill is also constitutionally suspect. If the Supreme Court overturns Roe, the federal government will lack any 14th Amendment justification to override state abortion laws. The WHPA could be left relying on Congress’s power to “regulate Commerce” among the states…

Some states are likely to ban abortion if Roe falls. If Congress can then compel the legality of abortions that are banned by state law, there is no limiting principle to what traditional sphere of state power it can’t oversee under the Commerce Clause. Why not local zoning or prostitution laws?...

As for Democratic calls to kill the Senate filibuster, do they really want abortion policy in 50 states to flip-flop depending on who wins the next Senate race in Georgia or Wisconsin? The wise move is to table the WHPA. Then Democrats can fight it out in the states, the constitutional way, for the abortion policy they want.”