Progressives release blueprint for federal action on reproductive freedom

The Congressional Progressive Caucus on Friday released a blueprint for legislative and executive actions to protect reproductive freedom in the wake of the U.S. Supreme Court’s decision that eliminated the constitutional right to abortion and endangers other civil rights.

“These concrete steps constitute a whole-of-government response to expand access to essential healthcare.”

The consequences of last month’s 6-3 ruling in Dobbs v. Jackson Women’s Health Organization “have been immediate and widespread,” Rep. Pramila Jayapal (D-Wash.), chair of the CPC, said in a statement.

“Abortion clinics have been forced to close, patients made to cross state lines for care, and the health and safety of pregnant people facing miscarriages or ectopic pregnancies has been threatened,” Jayapal continued.

“Millions across the country are facing fear and uncertainty,” she added. “Access to abortion has reached crisis level—and it demands a response from Congress and the Biden administration that meets this moment.”

The CPC’s call to action came immediately after the House passed the Women’s Health Protection Act (WHPA) by a margin of 219-210. Rep. Henry Cuellar—the right-wing Democrat whom House leaders helped win Texas’ May primary over pro-choice progressive challenger Jessica Cisneros—was once again the only party member to vote against the bill.

The WHPA—passed by the House last fall but twice-defeated this year in the Senate when Joe Manchin (D-W.Va.) joined Republicans to filibuster it—would enshrine the right to abortion in federal law.

Also on Friday, the House voted 223-205 to pass the Ensuring Access to Abortion Act (EAAA), which would enable pregnant people to cross state lines to obtain legal abortion care without fear of retribution from GOP lawmakers who are trying to ban interstate travel for the procedure. All but a few House Republicans opposed the bill—making clear, said Rep. Bill Pascrell Jr. (D-N.J.), that “they support forcing raped children to give birth.”

Jayapal applauded the House passage of the WHPA and the EAAA. She also commended President Joe Biden, Attorney General Merrick Garland, and Health and Human Services Secretary Xavier Becerra “for the steps they have taken thus far.”

As the CPC noted:

The Department of Justice issued guidance that states cannot ban medication abortion in contradiction to the [Food and Drug Administration’s] expert opinion, and designated a reproductive rights task force headed by Assistant Attorney General [Vanita] Gupta. The Department of Health and Human Services clarified that retail pharmacies cannot refuse patients reproductive healthcare medications, is convening volunteer lawyers to provide legal services to patients and providers seeking or performing abortion care, and issued guidance to ensure no one experiencing pregnancy complications is turned away from lifesaving emergency medical treatment.

“Now,” said Jayapal, “the Progressive Caucus is releasing an agenda for the work ahead.”

Developed in consultation with movement organizers, the Reproductive Freedom Action Agenda provides a roadmap in three policymaking arenas.

First, said the CPC, there are 10 executive actions that the Biden administration should take to protect abortion access:

1. Declare a public health emergency for reproductive healthcare access;
2. Allow licensed health providers to practice interstate telehealth for the prescription of medication abortion;
3. Ensure readiness of providers and pharmacies to dispense medication abortion after FDA removal of restrictions is finalized;
4. Ensure no one is denied contraception or other medications that are inaccurately portrayed as abortion-inducing;
5. Aid individuals accessing abortion care across state lines by providing funds to pay for transportation, lodging, child care, and other costs associated with travel;
6. Explore the use of federal property and resources to expand abortion access while ensuring the safety of patients and providers;
7. Assert the supremacy of federal law where states try to restrict ability to travel for reproductive care, access to medication abortion, and to criminalize pregnancy-related complications such as miscarriage;
8. Ensure undocumented people and those assisting them can travel to access abortion care without risk of detention and deportation;
9. Protect the right to abortion care without delay of those held in federal custody—no matter the state—including by Immigration and Customs Enforcement, Customs and Border Protection, Office of Refugee Resettlement, and the Bureau of Prisons; and
10. Require the provision of abortion care as a condition of participation for hospitals in Medicare.

Second, the CPC continued, there are seven legislative actions that Congress should take to protect abortion access:

1. End the Hyde Amendment and bans on federal spending and insurance coverage for abortion care;
2. Increase funding for Title X clinics to expand access to family planning care;
3. Protect the right to interstate travel for abortion care;
4. Protect the privacy and security of personal reproductive health data;
5. Support the safety and security needs of reproductive healthcare providers and support staff;
6. Lift the ban on the use of military facilities and funding for abortion care; and
7. Protect organizations and individuals who help people afford and access abortions from civil or criminal actions, including for out-of-state care.

Before the life-threatening Dobbs decision, access to legal abortion care had since 1973 been protected by the 14th Amendment’s substantive due process clause.

Fears that additional constitutional rights could soon be eradicated have only grown since Justice Clarence Thomas wrote in his concurring opinion that “in future cases,” the nation’s chief judicial body “should reconsider all of the court’s substantive due process precedents.”

Thomas specifically named the landmark cases of Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, which enshrined rights to contraception, same-sex intimacy, and marriage equality in 1965, 2003, and 2015, respectively.

In light of this ominous threat, the CPC also outlined five legislative actions that Congress should take to codify rights that have been put in jeopardy by the Supreme Court’s “extremist” majority:

1. End or reform the filibuster to ensure reproductive rights legislation becomes law;
2. Enshrine the right to contraception in federal law;
3. Enshrine the right to same-sex marriage in federal law;
4. Codify the right to privacy and same-sex intimacy in federal law; and
5. Institute key ethics reforms for the Supreme Court.

“These concrete steps constitute a whole-of-government response to expand access to essential healthcare, operationalize the [Biden] administration’s key regulatory and other authorities, and protect the fundamental rights threatened by the Dobbs opinions—including reforming the filibuster, the only way to ensure we enshrine abortion and other rights into law,” said Jayapal.

“The fight to guarantee freedom, dignity, and human rights for all will, and must, continue.”

“The fight to guarantee freedom, dignity, and human rights for all will, and must, continue,” she added.

In a Thursday letter to House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Chuck Schumer (D-N.Y.), several CPC members led by Reps. Alexandria Ocasio-Cortez (D-N.Y.) and Mondaire Jones (D-N.Y.), pointed out that even if the WHPA were enacted, “we can expect that legal challenges will eventually come before the Supreme Court again.”

For that reason, the lawmakers called on Congress to exercise its constitutional authority to prevent the high court’s reactionary majority from nullifying the WHPA, EAAA, and other bills that Democrats might eventually pass to codify access to contraception, same-sex intimacy, and marriage equality.

“As we Democrats plan for further legislative action to protect and enshrine abortion rights, as well as the three other fundamental rights called into question in Justice Thomas’ concurring opinion in Dobbs, we urge the exercise of Congress’ constitutional powers under Article III to include language that removes the Supreme Court’s appellate jurisdiction over such legislation,” they wrote. “The American people want to see Congress protect their fundamental rights, and the Constitution grants us the powers to do so.”