May 10, 2022

Democrats' abortion bill.

Plus, how does Europe handle abortion?

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

Democrats' abortion bill and a question about how things are done in Europe. Plus, a new member of the team!

Democratic Sen. Chuck Schumer has pledged to hold a vote on a bill that would enshrine abortion rights across the U.S. Photo: Victoria Pickering
Democratic Sen. Chuck Schumer has pledged to hold a vote on a bill that would enshrine abortion rights across the U.S. Photo: Victoria Pickering

Welcoming Watkins.

Today, Tangle has a new intern joining the team: Watkins Kelly. He'll be helping us on the social media side, and is our first ever intern to receive both a stipend and class credit as a member of the Tangle team. Legitimacy! I asked Watkins to write a brief bio:

My name is Watkins Kelly, and I am a rising senior at Harding University currently studying Public Relations. I’m from Huntsville, AL, and was lucky to grow up in an environment that showed me the value of listening to varying perspectives. Experiencing my first years of college (and my first time voting) in a global pandemic and time of heightened political tension, I sought out sources of information that could help me develop my own opinions. I quickly discovered a new passion for journalism and dependable news reporting, and I am thrilled to be a part of the team at Tangle and the opportunity to be a part of their mission to share perspectives.

Clarification.

In yesterday's numbers section, we noted that former President Donald Trump carried an 80% approval rating in Ohio. This number was in the context of the Republican primaries, but we didn't say explicitly that the approval rating was among Republicans, not all votes. So we wanted to make sure that was clear: His approval rating, according to a Morning Consult poll, was 80% among Ohio Republicans.


Quick hits.

  1. The Senate unanimously passed a bill to allow Supreme Court justices and their families increased security. (The bill)
  2. Uber, Netflix and Facebook have announced plans to slow hiring or lay off employees, citing a seismic shift in investor sentiment. (The cuts)
  3. Congressional leaders wrote a bill to send another $39.8 billion in military and humanitarian aid to Ukraine that could be taken up by the House today. (The deal)
  4. Russia has intensified its attacks on the port city of Odesa in southern Ukraine. (The strikes)
  5. Nebraska and West Virginia are holding primary races today for a set of seats in the House of Representatives. (The primaries)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

Democrats' abortion bill. In the wake of the Roe v. Wade opinion leak, which revealed that the Supreme Court is ready to overturn its previous rulings on abortion rights, the political blowback has been swift. Protesters have gathered outside the homes of Supreme Court justices, members of Congress have proposed bills to codify abortion rights, and state legislatures have, depending on the state, moved to enshrine (or restrict) legal abortion before the ruling comes down.

Late last week, Republican Senate Minority Leader Mitch McConnell told reporters it was "possible" his caucus could move on a nationwide abortion ban if they took control of Congress in the midterms, although he (and other Republican senators) shot the idea down in subsequent interviews. Yesterday, McConnell backtracked, and also ruled out ending the legislative filibuster (which requires 60 votes to pass major legislation) to pass abortion restrictions, telling Politico "I will never support smashing the legislative filibuster on this issue."

Instead, Republicans insist they want to leave the issue to the states and have mostly avoided any victory laps on the potential end of Roe v. Wade as they wait to see what the final Supreme Court ruling looks like once it is released towards the end of the Court’s term in June. Whether that is a political calculus or apprehension about the pending nature of the ruling is something we’ll find out later this year.

Democrats, meanwhile, are forcing a vote on legislation now, even though they expect to fail on the federal level. Sen. Richard Blumenthal (D-CT) introduced the Women's Health Protection Act of 2022 (WHPA), which Senate Majority Leader Chuck Schumer (D-NY) said will be brought to the floor for a vote this week. Schumer is hoping to get every senator on record in what Democrats expect will create valuable political talking points heading into the midterms.

If passed, the Women's Health Protection Act would cement a sweeping right to access and perform abortions into federal law and would supersede nearly all state laws banning or limiting abortions. It would ban states from prohibiting abortion services before or after fetal viability if a health care provider determines the pregnancy poses a risk to the patient's life or "health." It would prohibit burdensome rules restricting access to abortions, like waiting periods and ultrasound requirements. At least 33 states require patients to receive counseling before an abortion, and 14 require it in person, a practice the bill would end.

The bill would also prohibit governmental measures that restrict access to abortion services unless a state government can prove the measure significantly advances the health of patients or safety of abortion services. It would allow the Department of Justice, abortion providers, or individuals to file lawsuits against violations of the bill, regardless of whether the abortion restrictions came before or after the law was implemented. In some cases, the bill could also override religious exemptions for hospitals and health care providers, forcing them to provide abortion services.

The bill passed the House in February by a vote of 218-211, with every Democrat except Henry Cuellar of Texas voting in favor and Republicans unanimously opposing it. Shortly thereafter, it failed in the Senate (46-48) after a Republican filibuster, with six senators missing the vote.

Right now, the WHPA has 48 Democratic sponsors in the Senate, with Sens. Joe Manchin (D-WV) and Bob Casey (D-PA), who both describe themselves as pro-life, opposing the bill. Republican Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), who support abortion rights, say they're opposed to the bill because it overrides state law and have proposed their own narrower piece of legislation.

"It supersedes all other federal and state laws," Collins told reporters Thursday about the WHPA. "It doesn't protect the right of a Catholic hospital to not perform abortions. That right has been enshrined in law for a long time."

Below, we'll take a look at some reactions from the left and right, then my take.


What the left is saying.

  • The left mostly supports Congress’s action, but is wary of how it will pan out.
  • Some say state-level movement is just as necessary, while others call for supporting a bipartisan federal bill.
  • Some are skeptical of the legality of WHPA.

Michigan Gov. Gretchen Whitmer said she is not going to wait for Congress and has filed a lawsuit asking the Michigan Supreme Court to resolve whether women have the right to abortion under the state Constitution.

"As a woman born and raised in Michigan, I have a moral obligation to stand up for the rights of the nearly 2.2 million Michigan women who will lose their right to make decisions about their own bodies if Roe falls. Michigan, like several other states, has a law criminalizing abortion that is still on the books,” Whitmer wrote. “It was enacted in 1931 and would make our state home to one of the most extreme anti-choice policies in the country once this decision from the court is officially released. If Roe falls, abortion will become a felony in Michigan, without exceptions for rape or incest. My argument is predicated on the due process and equal protection clauses in our state constitution. The due process clause of the Michigan Constitution protects the right to abortion in the same way that the United States Constitution does per Roe, and the equal protection clause prohibits the state from adopting laws based on paternalistic justifications and overbroad generalizations about the role of women in the work force and at home.

“Other state constitutions, including the constitutions of Kansas, Montana, Alaska and Florida, have already been interpreted to protect the right to abortion,” she said. “I hope that my novel lawsuit can offer a course of action for others to follow. I encourage my fellow pro-choice governors, state legislators, private sector leaders and citizens to use every available tool to protect access to safe, legal abortions. Given that Michigan has a Republican-controlled legislature, I am not optimistic that I — as a pro-choice Democratic governor — can get a bill passed to overturn the 1931 Michigan law... At the national level, I joined with several of my fellow governors from across the country to urge Congress to pass the Women’s Health Protection Act. The bill, already passed by the House of Representatives, would put the protections offered by Roe into federal law. I implore senators to come together and get it done. But I am not going to sit on my hands waiting for Congress to do something.”

In Slate, Jordan Weissmann examined what Democrats should do next, and expressed skepticism that the WHPA is the answer.

“In the very short term, Democrats lack the votes to enact a federal statute protecting abortion rights. The party has 50 seats in the Senate, and one of them belongs to Joe Manchin, who identifies as pro-life and voted with Republicans to block such a bill in February,” Weissmann wrote. “He and fellow centrist Kyrsten Sinema have also said they won’t lift the filibuster in order to pass a bill. The most Democrats can muster right now is a show vote that might one day provide grist for attack ads against battleground-state Republicans, such as Maine’s Susan Collins.

“Even if there were enough votes to write Roe into federal law, there’s a strong chance the Supreme Court would strike it down,” he added. “The bill Democrats plan to introduce, the Women’s Health Protection Act, would regulate abortion based on Congress’ power to oversee interstate commerce. But there’s a long-running debate about whether that would be a legally valid exercise of lawmakers’ authority, and the justices who appear ready to unravel Roe could pretty easily reject the law simply by ruling that, no, abortion does not count as interstate commerce. (On the bright side, that might also block Republicans from passing a national abortion ban, since such a law would likely have to be rooted in the commerce clause as well.)”

In Politico, Elana Schor said Democrats should embrace the bipartisan bill that Sens. Collins and Murkowski are proposing.

“There is a path to getting Collins, Murkowski, and possibly even Manchin on board for a narrower bill that would codify Roe and Casey into the law of the land in all 50 states,” Schor said. “The two GOP women have their own bill that would establish abortion rights on the federal level. It’s far more narrowly tailored, with carve outs for objections from medical workers based on religion or conscience. It’s also more focused on abortions in early pregnancy. Democratic leaders have no plans to call it up.

“Not because they’re convinced it’s a bad idea, necessarily — Senate Majority Whip Dick Durbin (D-Ill.) told our Marianne LeVine this week that, given Collins and Murkowski’s votes for recently confirmed future Justice Ketanji Brown Jackson, he wanted to see ‘if there’s any common ground’ on their bill. Sen. Mazie Hirono (D-Hawaii) gave the clearest explanation of the political logic behind giving Collins and Murkowski the stiff-arm: Neither bill is going to pass, so why not vote for the one that Democrats think is better?” Schor said. “Except that Democrats have spent two years decrying minority rule in the Senate. Most of the Democratic Party is trying to chip away at the legislative filibuster that requires 60 votes to pass most bills. The failure of an abortion-rights bill that passed with 52 votes would seem to be be a stark illustration of how the Senate works now.”


What the right is saying.

  • The right says the bill Democrats are proposing is radical and unpopular.
  • They suggest it goes well beyond current law and would legalize abortion in nearly all cases.
  • Some say it could backfire politically.

The Wall Street Journal editorial board called it Schumer’s radical abortion bill.

“Bill Clinton’s artful framing was that abortion should be ‘safe, legal and rare,’ but that’s ancient history to today’s Democrats,” the board wrote. “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.’ Some states have tried to prohibit sex-selective abortion, the practice usually of terminating a girl merely because a boy is desired. The WHPA appears to protect that choice.

“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’?” the board asked. “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. The legislation also exempts itself from the Religious Freedom Restoration Act, which is why Ms. Collins says it would undercut ‘basic conscience protections’ for religious healthcare providers.”

John Hirschauer, in The American Conservative, said the bill would end “every existing” federal conscience provision for anti-abortion and health care providers.

“The legislation, which passed the Democrat-controlled House in September 2021, bars states from restricting access to ‘abortion at any point or points in time prior to fetal viability’ and from banning late-term abortions when the pregnancy poses ‘a risk to the pregnant patient’s life or health.’  That effectively legalizes abortion on demand up to birth, as the Supreme Court has held in Doe v. Bolton that ‘health’ encompasses not only a woman’s actual physical health but her ‘emotional, psychological,’ and ‘familial’ health,” Hirschauer wrote.

“Senator Susan Collins signaled she is a ‘no’ on this draft of the WHPA because it ‘doesn’t protect the right of Catholic hospitals to not perform abortions.’ Blumenthal responded that Collins was wrong, and claimed that there is nothing in the bill ‘that detracts in any way from existing protections based on conscience or religion.’ Blumenthal is either lying or ignorant of the text,” Hirschauer wrote. “The bill expressly preempts the Religious Freedom Restoration Act and any law that ‘impedes access to abortion services.’ The latter would include conscience provisions like the Weldon Amendment, which prohibits the Department of Health and Human Services from funding any federal, state, or local government that discriminates against hospitals and other institutions that refuse to provide abortions, and the Church Amendment, which ensures that federal funds for health services are not made contingent on the recipient’s willingness to perform abortions.”

Marc A. Thiessen said Democrats should "watch out," because trying to take up the abortion fight might backfire politically.

"A Fox News poll released this week finds most Americans agree with the Mississippi abortion law at the heart of the Supreme Court case. The survey found that 54 percent favor state laws banning abortion after 15 weeks of pregnancy, except in the case of a medical emergency — exactly what the Mississippi law does — while just 41 percent oppose such a law. This is consistent with the results of a 2018 Gallup poll that found most Americans want abortion restricted to the first trimester (the first 12 weeks of pregnancy), while only 28 percent support allowing abortions in the second trimester and just 13 percent in the third trimester.

“If Democrats focus on defending abortion this November, it will backfire,” he wrote. “An April Economist-YouGov poll finds that abortion is the most important issue for just 4 percent of voters — trailing jobs, the economy, immigration, climate change, national security, health care, taxes and civil rights. This should come as little surprise. We are experiencing the worst inflation in 40 years, the worst crime wave since the 1990s and the worst border crisis in American history. Focusing on abortion amid these crises will make Democrats seem hopelessly out of touch. Every minute they spending talk about abortion is a minute they don’t spend talking about the issues Americans say they care more about."


My take.

I'm of two minds on this legislation.

On the one hand, I understand Democrats' sense of urgency and desire to just do something. As I wrote last week, Roe v. Wade being struck down would be a frightening turn of events for many different reasons. That’s my personal view, but also one shared by many Americans. Democrats, who represent most pro-choice Americans, can't simply sit around and do nothing, especially while they have a majority. Bringing forward a federal bill that has already passed the House is not the worst idea. And this bill does precisely what Democrats say: It protects the right to abortion in nearly all cases across the country, and would amount to a sweeping solidification of a woman's right to choose — one that goes far beyond current law.

On the other hand, politically, this seems like one of the worst decisions possible. As I've noted before, abortion polling is really messy. I could make a good argument that the current state of abortion law — where it is broadly protected as a right early on in pregnancies while some states have created significant burdens to having one — is actually pretty much in line with American sentiment.

But there is very little indication that a bill essentially green lighting all abortion nationally would be popular. Most Americans support some abortion restrictions in the second and third trimester (just 28% of Americans say abortion should be “generally legal” in the second trimester). That means even Americans you might think of as “pro-choice” are probably not going to be supportive of a bill that would essentially prevent any state legislation from restricting access in any way. Even less popular is a law that would supersede nearly all state restrictions and force religious-affiliated hospitals into performing abortions. Predictably, Republicans are already having a field day with this bill, and I suspect their message is going to be received well by voters in the middle of the issue.

It's especially confounding when you consider there is another bill with two Republican votes on board — one that may be able to win over Democratic Sens. Manchin and Casey. Some Democrats have argued that either bill will fail, so they are reluctant to join hands with Republicans and would rather mark the distinction between the two parties. That’s certainly, um, an angle to choose.

But choosing a bill failing 48-52 with two members of your own party objecting is a bizarre strategy when you could rally behind a bill that has the potential to grab a 52-48 majority, with every member of your caucus on board and support from two Republicans. On top of that, the Murkowski-Collins bill does essentially protect abortion rights as they exist now, a la Roe v. Wade in a democratic fashion, which is simple enough messaging.

In other words: Democrats are opting for political posturing over actually legislating, even when the latter option neatly fits into their desire to once again highlight a time when the legislative filibuster is stopping them from passing what would be broadly popular legislation. I'm uncertain why they wouldn't take this opportunity to add fuel to that fire.

Even worse, there are real questions about whether the WHPA would even be legal or survive Supreme Court scrutiny (I'm skeptical). Gov. Whitmer's approach, to file a lawsuit in her own state and try to leverage the state's Supreme Court to enshrine abortion rights, is novel and clever, but there are a limited number of states where it will work. I'll be curious if other Democratic governors follow suit.

As Weissmann pointed out, there are few good options on the table for Democrats if this ruling comes down even remotely close to what was in the leaked draft. What Democrats really need is a majority of Supreme Court justices, but that is decades away. Or they need 60 Democratic senators, which seems nearly impossible thanks to the institutional advantage Republicans have in the Senate. Or they need control of more state legislatures, but they appear to be losing power in most purple and red states — not gaining it. Of course, they could also try to abolish the filibuster, which they don’t have the votes in their party to do, and which wouldn’t help them pass the WHPA anyway.

None of this is to imply Democrats should do nothing. If (or when) Republicans take control of Congress and the White House, there is good reason to believe they'll push for a nationwide abortion ban, even if they're saying right now that they won't. Antiabortion activists are already calling for such a ban, the draft from Alito seems to leave the door open for one, and 19 senators and more than 100 Republican representatives have already cosponsored legislation that would grant legal personhood from conception.

Like the WHPA, all of this would be an affront to many Americans who are generally moderate on this issue, so if Democrats want to simultaneously take the political high ground and align themselves with the moral compass of most Americans, they should embrace the Murkowski-Collins bill while throwing whatever else they can against the wall and hoping something sticks.

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


Your questions, answered.

Q: How did Europe seemingly skip over the abortion debate, while here it seems to be the largest "single issue" issue there is?

— Bjorn, Austin, Texas

Tangle: I'm not sure I would characterize it as being skipped over in Europe. Abortion rights in Europe actually vary widely and are being squeezed in many of the same ways they are in the U.S. It is true that nearly all European countries allow abortion on request or on broad social grounds in the first trimester of a pregnancy. Some allow it up to 18-24 weeks, but that is less common. This happened not through court rulings or an implied right, but through legislation and the democratic process.

Some countries, like Sweden, are at the top of the rankings in terms of abortion rights (they allow unfettered access until the 18th week of pregnancy).

Still, there is absolutely a fight on the ground. Countries with religious traditions like Poland have been in an American-esque battle over abortion for years. The country passed a near-total ban on abortion in 2020, which caused widespread civil unrest. Those protests kicked up again last year after a woman died from a pregnancy, which her lawyer said happened after doctors delayed her abortion (the government claims it was medical error, not a result of the restrictive laws there). Meanwhile, in countries like Malta, which is deeply Catholic, abortion is illegal under any circumstances.

The truth is abortion rights in Europe are broadly accepted because they were instituted mostly through the democratic process and align mostly with the views of Europeans in the countries where they exist. And they vary based mostly on the religiosity of each individual nation (Americans are more religious than most Western Europeans). Abortion access exists in countries that are less Christian and Catholic, and it is limited in countries that are more Christian and Catholic. Where religious views in Europe align with America, abortion is prohibited in similar ways. As a result, pro-choice advocates have mostly “won” with legislation that seeks broad first trimester abortion rights and allows limitations afterward.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

In an effort to ease the pain of inflation, nearly three dozen states are enacting or considering forms of tax relief, according to the Tax Foundation. In Kansas, the Democratic governor is pushing to slash the state's grocery tax; in Iowa, Indiana and Idaho, legislatures have already cut state income taxes; in New Mexico, lawmakers passed a $1,000 tax rebate to households struggling due to gas prices. In many cases, Democrats are joining Republicans in cutting or reducing taxes, including for high earners, at a time when budget coffers are healthy and families are feeling the pain from the rising cost of goods. Economists, however, have expressed concern that cutting taxes could actually exacerbate the inflation issue by putting more money in people's pockets. The New York Times has the story.


Numbers.

  • 60%. The share of U.S. adults who say abortion should be generally legal in the first trimester of pregnancy.
  • 28%. The share of U.S. adults who say abortion should be generally legal in the second trimester of pregnancy.
  • 69%. The share of U.S. adults who say they would not like to see the Supreme Court overturn Roe v. Wade.
  • 29%. The share of U.S. adults who say they would like to see the Supreme Court overturn Roe v. Wade.
  • 73,000. The number of new Covid-19 cases in the U.S. per day, according to the latest averages.
  • 30 years old. The median age of U.S. women giving birth, the highest on record.

Have a nice day.

Patron the bomb-sniffing dog has officially been recognized by Ukraine's government. The tiny Jack Russell terrier became a viral sensation for his role in helping neutralize Russian explosives in Ukraine. On Sunday, Ukrainian President Volodomyr Zelensky formally recognized the dog for his service to the country. His name, Patron, means "ammunition" in Ukrainian, and he's been credited with detecting more than 200 undetonated bombs since the war began in February. His talented nose and pint-sized protective vest have become a hit on social media, inspiring fan art across the globe. NPR has the story.


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