It was a curious bit of journalistic malpractice, made worse by the fact that it appeared in the New York Times, the paper of record, after passing editorial muster. The headline is where it started.
How a Bill to Protect Abortion Access Failed in the Senate
After Republicans blocked the legislation intended to preserve rights established by Roe v. Wade, Democrats vowed to keep fighting, with an eye on midterm elections.
On the one hand, the bill wasn’t intended to “preserve rights established by Roe v. Wade,” but to expand them far beyond anything Roe and Casey would permit. On the other hand, it wasn’t Republicans who blocked the bill, as Annie Karni’s article went on to assert.
With 51 senators opposed and 49 in support, Democrats fell short of the 60 votes they would have needed to take up sweeping legislation to ensure abortion access and explicitly bar a wide array of restrictions.
If it’s not immediately clear what’s wrong with that characterizations, consider Senator Elizabeth Warren’s explanation of the math involved.
“I believe in democracy, and I don’t believe that the minority should have the ability to block things that the majority want to do. That’s not in the Constitution,” the liberal senator told CNN reporter Manu Raju following the vote.
The 49 votes for the bill is the majority. The 51 votes against are not. Had there been no threat of filibuster, the bill would still not make it to the floor because 51 senators voted no. This came after the Democrats sent out their new correct word usage in abortion messaging.
With all this apparent effort to move this bill forward, to accomplish nothing more than codifying Roe which has the overwhelming support of a nation, what could possibly go wrong?
Democrats touted the bill, which was supported by 49 senators, as a way to preserve the rights protected by Roe. But it goes much further than that, overriding existing regulations that have been upheld by the courts under current precedents or have yet to be tested.
Further? But surely the New York Times would report honestly about this bill if it wasn’t merely the codification of existing law in the face of a likely overruling of Roe.
The Women’s Health Protection Act of 2022 says states may not ban abortion prior to “viability” (i.e., the point at which a fetus can survive outside the womb), which nowadays is generally said to occur around 23 or 24 weeks into a pregnancy. The bill also prohibits bans on post-viability abortions “when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”
The kicker to the bill is less about abortion on demand prior to viability, even though viability raises sticky questions, fails to provide a cognizable fixed end point in time and may well become a moving object as medical advances change the nature of viability. No, the kicker is in the post-viability option raising two significant problems.
The first is that the “risk to the pregnant patient’s life or health” defines health as mental health, not merely physical health. This hole renders the limits of the law essentially meaningless, as any woman can claim her mental health will be affected if she’s denied an abortion.
But what about the “good-faith medical judgment of the treating health care provider”? Isn’t that good enough to thwart a dishonest claim of an adverse impact on mental health? Initially, note that it doesn’t say medical doctor, but health care provider. Further, there are already supporters of extensive expansion of abortion within the ranks of health care providers who will sign off, with the best faith, on a post-viability abortion for the woman’s mental health. This would, in effect, permit abortion on demand up to birth.
In Casey, the Supreme Court held that states may not impose an “undue burden” on abortion and include “exceptions for pregnancies which endanger the woman’s life or health.” Republican senators Susan Collins (Maine) and Lisa Murkowski (Alaska) support abortion, and they, plus West Virginia Democratic Senator Joe Manchin, would have supported a bill that in fact codified Roe and Casey. That doesn’t mean it would have survived a Republican filibuster, but at least it would have had a chance rather than, as Manchin said, expanded Roe.
As states are enacting laws that will wreak havoc with abortion rights, ranging from limits to prohibitions and even criminalization, the need to codify Roe and Casey in light of the Alito draft decision which, according to myriad leaks coming out of the Supreme Court, is going to hold for the final opinion, the Dem Senate bill seems intended, destined, to fail. You wouldn’t know it from the reporting in the New York Times, which studiously concealed that this bill went far beyond codifying Roe and demonstrated a remarkable inability to do basic math.
Why? Why take the bill from a place where the public overwhelmingly supports it, where it has its best support in the Senate, and toss in a tricky radical shift that would allow partial birth abortion? It may not be clear that the Dems would win in the Senate with a bill that wasn’t radical in its approach and, in fact, did what they claimed it would do, but it would be honest, have the support of a majority of Americans and have the best possible chance of enactment for the benefit of women, as well as the demographics that concern the ACLU.
A cynic might suggest that the Dems don’t want to “fix” Roe, even if they and their fellow travelers in the media want to create the appearance that they do. Rather, the Alito draft gave the Dems an opportunity to exploit the outrage over abortion, which may provide the impetus to get as much of a blue wave out to vote as possible. It’s almost as if all the tears shed over “My Body, My Choice Decision” are for political show and not meant to codify the right to abortion at all.
No comments:
Post a Comment