Today, the U.S. Senate will hold a revote on the deceptively named “Women’s Health Protection Act of 2021.” This same bill passed the House on Sept. 24 last year but was rejected in the Senate by a vote of 46-48 on Feb. 28.

WHPA is just the modern iteration of the “Freedom of Choice Act,” the latest attempt in an 18-year quest by Democrats to have Congress legislate a nationwide right to abortion. It is unclear whether Democrats are resurrecting the WHPA in hopes that the leaked draft opinion of Justice Alito and subsequent intimidation efforts have moved some senators to reconsider the radical piece of legislation or whether it is simply election-year political theater to cater to the abortion industry. Either way, this legislation must be re-defeated, lest American abortion law remain stuck, along with that of China and North Korea, as permitting abortion right up until the moment of birth.

Proponents of the act claim that it simply codifies Roe v. Wade. That is not true. Rather, it establishes a regimen of abortion absolutism that goes far beyond Roe.

In the 49 years since the Supreme Court created a constitutional right to abortion based on vague "emanations" and "penumbra," this right has been inconsistent in its precise nature. Throughout the years, it has waxed and waned with no clear basis for the changes in law or the facts of each case. At its zenith, states were barred from requiring parental consent or requiring physicians to obtain a woman’s fully informed consent to the abortion. Notwithstanding the original Roe decision's assurances that states could go so far as to outlaw abortions after a baby was capable of living outside his or her mother, courts prevented states from requiring a second physician to be present during post-viability abortions to assure that both the woman and the baby received proper medical care in the event of live birth. More recently, courts have been less hostile toward limited state-level restrictions and regulations on abortion.

But the Women’s Health Protection Act of 2021 goes far beyond anything Roe or its progeny imagined in preventing any reasonable regulation of abortion. Nowhere in the act do you find the phrases established by the existing jurisprudence — “potential human life” or “undue burden." Instead, the bill considers only the well-being of abortion providers and, secondarily, their patients. Any law or regulation that providers deem unacceptable will be subject to what lawyers call “strict scrutiny” and will only survive if a state can show, by clear and convincing evidence, that the law “advances the safety of abortion services or the health of patients” — note the order in which that is written — and there are no less restrictive means to achieve that end.  

Under this standard, the WHPA would eliminate all laws requiring that parents be involved in their minor daughters’ decisions about a pregnancy. It would eliminate state laws protecting women’s right to truthful information about fetal development, abortion procedures, and accompanying risks, as well as undermine alternatives to abortion and related resources.  

In addition to the elimination of almost all protections states afford women and the unborn, any attempt by states to craft new protections will be subject to federal intervention anytime local abortion providers claim a proposed law impairs their ability to perform abortions freely. In short, the act will impose the most aggressive pro-abortion policy in the world outside of China.  

This is not what a majority of the public wants. This is not a codification of Roe but rather the absolute right to abortion anytime, anywhere, that the Roe majority rejected. Sponsors claim surveys show that most Americans want to “protect Roe v. Wade,” a tendentious claim at best, particularly when the questions are skewed or ambiguous. There is no evidence that Americans want unrestricted abortion on demand from conception until live birth. In fact, there is evidence to the direct contrary. And there is certainly no evidence that people want to immunize and privilege the abortion industry above all other industries. 

Senators should stand firm in their rejection of this duplicitous and dangerous bill.  

Teresa Stanton Collett is a law professor at the University of St. Thomas (MN), where she directs the Prolife Center. She testified before Congress in February 2021 on a version of the Women’s Health Protection Act.