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S. 3713: Reproductive Choice Act


They’re really wade-ing into controversial territory.

Context

A coalition of states led by Mississippi is asking the Supreme Court to overturn its 1973 decision Roe v. Wade, which found a nationwide constitutional right to abortion. In December 2021, the Court heard oral arguments in the case Dobbs v. Jackson Women’s Health Organization.

If the decision goes Mississippi’s way, that doesn’t mean abortion would instantly become *illegal *nationwide. But 12 states currently have so-called “trigger laws” that would automatically ban (or nearly ban) all abortions if Roe is overturned and other individual states could then ban the practice, which at least 20 states seem poised to.

The current Court’s nine members comprise a conservative-leaning majority of at least five — and sometimes six — justices, depending on the question at issue. Either way portends a potential overturn of Roe.

The court’s decision is expected later this year, likely in June. (The court traditionally saves most of its most important decisions for June, the final month of its annual term.) If they overturn Roe, is there anything Congress can do?

The first attempt

Congressional Democrats tried with the Women’s Health Protection Act.

The legislation would have codified Roe into federal law, but also added additional measures beyond current Supreme Court precedents. Provisions included prohibitions on waiting periods, specific medical tests in advance, and limits on dispensing medication abortions in person or by telemedicine.

Last September it passed the House 218–211 on a party line vote, with Republicans unanimously opposing and Democrats almost completely supporting it 218–1. Among House Democrats, only Rep. Henry Cuellar (D-TX28) opposed, citing his Catholicism.

After passing the House, in February the bill failed cloture in the Senate by 46–48. Similar to the House vote, Republicans were unanimously opposed while all Democrats voted in favor except Sen. Joe Manchin (D-WV).

Two of the most centrist Senate Republicans, who both voted against it, have now introduced a compromise bill instead.

What the bill does

The Reproductive Choice Act would codify Roe in federal law and prohibit “undue burdens” on people seeking abortions, but unlike the Women’s Health Protection Act undue burdens are undefined and the law specifically allows states to enact some kinds of restrictions, again undefined.

In other words, the Reproductive Choice Act would appear to maintain the status quo: preserve Roe like Democrats want, while permitting some state restrictions like Republicans want.

It was introduced in the Senate on February 28 as S. 3713, by Sen. Susan Collins (R-ME) alongside Sen. Lisa Murkowski (R-AK).

What supporters say

Supporters argue that the bill strikes a moderate balance, keeping abortion rights as most Democrats want, while respecting some level of states’ rights on the issue as most Republicans want.

“I support the abortion rights established by Roe v. Wade,” Sen. Collins said in a press release. “Our legislation would enshrine these important protections into law, without undercutting statutes that have been in place for decades and provide basic conscience protections that are relied upon by health care providers who have religious objections to performing abortions.”

What opponents say

Opponents on both sides would argue that the bill is either too far right or too far left. Both the Senate majority and minority leaders offered contrasting speeches on the floor during debate on the Women’s Health Protection Act in February.

“Congress must codify into law what most Americans have long believed: that abortion is a fundamental right and that women’s decisions over women’s healthcare belong to women, not to extremist right-wing legislatures,” top Senate Democrat Chuck Schumer (D-NY) said in a floor speech.

“Ninety-one percent of Americans support some restrictions on abortion during the third trimester. The public overwhelmingly disagrees with Democrats’ extreme obsession on this issue,” top Senate Republican Mitch McConnell (R-KY) said in a floor speech shortly after. But yet again, our colleagues wish to demonstrate that the radical left fringe runs today’s Democratic Party.”

(Survey results fluctuate a bit, but Gallup has indeed consistently found that around 10 percent of Americans say abortion should be “generally legal” during the third trimester.)

Odds of passage

Besides the two aforementioned cosponsors, no other senator has yet signed on. The bill awaits a potential vote in the Senate Judiciary Committee.

Last updated Mar 14, 2022. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Feb 28, 2022.


Reproductive Choice Act

This bill provides statutory authority for certain Supreme Court holdings on abortion rights and restrictions in the cases of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

In Roe, the Court held that the Constitution protects a woman's decision to terminate her pregnancy. In Casey, the Court reaffirmed this holding and additionally held that state abortion regulations may not place a substantial obstacle in the path of a woman seeking an abortion before fetal viability (i.e., an undue burden). However, a state may (1) restrict abortions after viability, except when a pregnancy endangers the life or health of the woman; and (2) enact regulations to further the health or safety of a woman seeking an abortion, except for unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion.

The bill provides statutory authority for these holdings. It also specifies that the bill does not affect laws regarding conscience protection.