Wading into the abortion rights debate that has seized the national political spotlight, Sen. Kamala Harris will propose giving the federal government more oversight over state abortion laws.
Her proposal would give the Department of Justice final say over abortion laws passed by states or localities that have enacted unconstitutional abortion restrictions in the past 25 years.
“State legislatures are fundamentally attacking a woman’s right to make decisions about her own body,” the California Democrat said Tuesday night during a televised town hall with MSNBC.
The policy is modeled on the 1965 Voting Rights Act, which said that jurisdictions with a history of discrimination must get preapproval from the attorney general to make any changes to voting laws that could affect minorities. That provision, known as the “preclearance” process, was struck down in a 2013 Supreme Court ruling.
Harris would mirror that approach for abortion rights, which would require a new law passed by Congress in order to give the Department of Justice that authority.
“It really goes on the offense. It’s a real game changer,” said Laurie Rubiner, former vice president of Planned Parenthood.
Currently, if abortion rights advocates oppose a law passed on the state or local level, “we have to wait for them to pass the law, we go to court, we challenge it,” Rubiner said. “The onus is on us to challenge it. We have to go through the expense, the time.”
Harris’ proposal would shift the burden to the law’s authors to prove it is constitutional before it goes into effect. Her plan would apply to jurisdictions that in the last 25 years have been found by court ruling or settlement to have violated Roe vs. Wade, the 1973 Supreme Court decision that protected abortion rights.
The idea faces a number of hurdles, especially its need for a new federal law to give the Justice Department that oversight power.
“Until recent years, there was consensus in Congress about the need for a strong Voting Rights Act,” said Rick Hasen, a voting rights expert and law professor at UC Irvine. “In the last 40 years, there has not been any consensus in Congress on anything regarding abortion.”
Even if Harris did manage to enact a new law, there’s no guarantee the Supreme Court, particularly with its current conservative lean, would uphold it.
“I give it points for creativity,” Hasen said. “I would still say the odds of this ever being enacted or upheld are quite slim.”
Harris’ plan coincides with the abortion debate drawing renewed attention after a number of states, including Georgia, Alabama and Missouri, have passed increasingly restrictive laws with the expressed hope of forcing the Supreme Court to revisit the Roe decision.
On Tuesday, the Supreme Court showed its reticence to tackle the issue head-on by declining to consider an effort to reinstate an Indiana law that would have made it illegal for women to terminate a pregnancy because of the race or gender of the fetus, or if the fetus had been diagnosed with Down syndrome.
Democratic presidential candidates, meanwhile, have emphasized their support for abortion rights. Nearly all of the contenders, including Harris and Sens. Elizabeth Warren and Cory Booker, have said they want to codify abortion rights into federal law.
Abortion opponents denounced the positions taken by the presidential hopefuls
“The overwhelming majority of Americans are alarmed, not impressed, by the abortion extremism on display from Democrat Party leaders nationwide, including the 2020 Democrat candidates who appear to be in a contest to prove who can be the most radically pro-abortion,” said Mallory Quigley, a spokeswoman for the anti-abortion group Susan B. Anthony List.