RAFSA: Codifying Roe v. Wade Into Law

My modest proposal for legislating basic abortion access: “The Reproductive Autonomy & Fertility Sovereignty Act”

Ever since June’s overturn of Roe v. Wade via the Dobbs v. Jackson Women’s Health Organization ruling, pro-choice Americans wonder what the next steps should be. How can good legislative solutions be achieved that won’t just get overturned by this same U.S. Supreme Court all over again?

Now that odds are increasing that Democrats could control both chambers of Congress — even if still by narrow margins — following this year’s midterms, it’s important to look to the future. There needs to be a blueprint for how that reckless SCOTUS opinion can be mitigated and fixed. The plan must be executed within a year or two.

I’ve been very open about my support for abortion access.

I’m glad that understandable anger over right-wing overreach is forcing more and more Americans to realize why it’s so essential to participate in midterms and down ballot races. However, I do have one qualm with what has become a sudden epiphany amongst politically-disgruntled folks…

It shouldn’t have taken the repeal of Roe v. Wade for people to actually begin caring about this issue.

At any rate, I’d like to offer up a simple-yet-profound legislative remedy to repair this judicial atrocity.

I call it “RAFSA”…

The Reproductive Access & Fertilization Sovereignty Act

Why start from scratch, rather than using the previously-failed Women’s Health Protection Act?

A fresh legislative approach would force a “reset” on the dialogue over abortion in the United States. It would be a mindful effort to prioritize access and safety in terms that would have enormous buy-in from a megamajority of the general public. It would emphasize three main areas of reproductive health:

• Codifying and decriminalizing abortion, based on the trimester
• Preventing a slippery slope of abuses so that fertility and reproductive freedoms are protected
• Safeguarding women, as well as transgender and nonbinary people, from medical neglect due to potential formalities or technicalities

Let’s explore what type of language should be included…or, perhaps more significantly, which issues would be excluded.

When would abortion be legal?

On May 11, Senate Majority Leader Chuck Schumer held a vote on the Women’s Health Protection Act. Make no mistake: Schumer knew the vote would be largely symbolic. He realized that Democrats didn’t have the votes to overcome a Republican filibuster.

Schumer’s tactic was smart yet short-sighted. He forced Republicans to go on record against the coast-to-coast availability of basic abortion rights — which is at odds with a majority of the American public. He illustrated how electing additional Democratic U.S. senators is necessary in order to pass such legislation via a “carve-out” that could bypass the filibuster.

On the other hand, I believe that Senator Schumer missed a golden opportunity to force a vote on a more modest version of the failed legislation. Had he held a vote on a less-sweeping bill — such as the Reproductive Choice Act put forth by Susan Collins and Lisa Murkowski — he could have further exposed conservative extremism. Or, the same opportunity exists for the more recent bipartisan Reproductive Freedom for All Act.

Although the Collins/Murkowski legislation falls far short of ensuring reproductive freedoms, putting it up for a vote would wedge “pro-life” Republicans between a rock and a hard place. Either they could vote for a compromise bill, pissing off their evangelical base; or, they could filibuster it — pissing off moderates and centrists from every background.

RAFSA, as I envision it, confronts issues that the Collins/Murkowski bill tries to sidestep.

Abortions up through the first trimester should be decriminalized and made legal in all fifty U.S. states and territories. In addition, RAFSA would stipulate that abortion policy in the second trimester and beyond can be left up to the states. However, RAFSA would require every state to allow consistent exceptions for rape, incest, and mortality even when second-trimester or third-trimester abortions would otherwise be illegal.

For women who seek an elective abortion once the second trimester begins, there are many states where the procedure would still be available. According to the Guttmacher Institute, the four states with the most permissive abortion laws are Vermont, Oregon, Maryland, and California.

Guttmacher also identifies Hawaii, Montana, Utah, Wyoming, New Mexico, Illinois, Michigan, New York, Rhode Island, Connecticut, Massachusetts, New Hampshire, and Maine as having fairly solid abortion protections in place. And, of course, in the coming years, there will be increased pressure on lawmakers in “purple” or “purplish-red” states to increase abortion access past the 12-week mark.

Ultimately, doctors are the best experts on how to perform abortions safely and responsibly. But in a May 31 editorial, Medium’s Carla Seaquist points out how demanding unfettered access to abortion in every scenario gives anti-abortion foes an easy excuse to preserve legislative gridlock.

As she proposes for a middle-ground standard:

And the reformed strategy? One that resets its parameters: away from the extreme of unrestricted abortion through the third trimester — and back to the more defensible parameter of abortion restricted to the first [trimester]. In other words, the Golden Mean, not the extreme.

RAFSA would operate under this same principle.

Putting a roadblock in front of that slippery slope

Jessica Camacho authored a May 22 editorial in which she suggests that anti-choice activists want to go beyond just banning abortion.

If they determine that life begins at conception as a legal gold standard, Camacho theorizes, then what’s to stop them from targeting miscarriages, surrogacy, gender-reassignment surgery, the morning-after pill, oral contraceptives, and Assisted Reproductive Technology (ART) for criminalization?

As she probes:

…is it so far-fetched to believe that if a woman cannot be permitted to terminate a pregnancy, she cannot be permitted to prevent a pregnancy either?

RAFSA should include a section explicitly reiterating how well-regulated fertility clinics, emergency contraception, preventive contraception, and gender-affirming care will be legal in all fifty states and every U.S. territory.

This way, everyone still has reliable family planning options — regardless of where they live. Doctors won’t need to fear losing their licenses due to technicalities if they provide life-saving treatment.

Which brings me to a third area…

Protecting doctors and advocating for patients

Eight days after the Roe v. Wade appeal was leaked to the public, Paula Shablo shared her harrowing account of undergoing a Dilation & Curettage (D&C) procedure at the age of twenty.

As she describes it:

A small amount of placental tissue had been left inside my uterus after my daughter’s birth and had not been expelled naturally by my body, which generally happens within hours or days with the post-birth flow of blood. It had caused a raving infection that had to be dealt with immediately.

Eventually, following her D&C surgery, Shablo had to have a hysterectomy. And things got worse, even after that. Ultimately, doctors were forced to remove the rest of her ovaries and fallopian tubes due to endometriosis.

In the aftermath, Shablo recalls:

I had four young children, and the only thing left of my organs to remind me I was female were my breasts. My hormones were essentially non-existent, which left me vulnerable to all sorts of scary things, like osteoporosis and breast cancer and heaven knows what else.

Testosterone levels rose to abnormal levels [in my body]. I spent the next several years trying different therapies just to feel human again. I would not wish any of this on my very worst enemy, if I actually had a nemesis…The procedure I went through to save my life would have been impossible if not for this precedent. MANY procedures that have absolutely NOTHING to do with ending a normal pregnancy would be restricted or forbidden if Roe v. Wade is overturned…The medical terminology and the procedural definitions and billing codes are the same regardless of the reason for the procedure.

You may argue that Shablo’s medical circumstances were rare and extenuating…but that’s beside the point.

Medical services should never be out of reach because of legal technicalities or red tape. The Dilation & evacuation (D&E) procedure is typically performed during the second trimester. Yet, many “pro-life” voices insist that a D&E would be an example of “partial-birth abortion” (especially when the D&X variation removes the fetus intact).

Doctors are the ones professionally trained in these practices.

Not Ted Cruz.

RAFSA would require an extremely high and rigorous burden of proof when making a claim for any American doctor to be punished or convicted for overseeing these types of procedures. The oppressive Texas laws known as S.B. 8 and H.B. 1260 would become a thing of the past.

Furthermore, RAFSA should specify how…

Traveling across state lines to seek abortions or reproductive care (outside of one’s state-of-residence) remains unequivocally legal, as per the Fourteenth Amendment.

Sharing a private citizen’s medical records without their consent would be a federal crime. So no more anti-abortion “bounty hunters” itching to cash in for essentially spying on their fellow citizens.

Prosecuting or sentencing individuals who use abortion clinics or other reproductive health care services would be grounds for disbarment of attorneys or impeachment of federal judges.

What RAFSA *wouldn’t* include…

Gideon M-K; Health Nerd expresses the viewpoint that contraception is the most reliable way to prevent abortions.

In addition to contraception, Anu Kumar cites quality sex education and stipends for caregiving or daycare services as funding endeavors that would actually reduce the number of abortions in America.

Although many of the objections that conservatives have made in opposition to the Women’s Health Protection Act are really just false objections, there are some reasonable concessions RAFSA could make while keeping abortion legal.

Since a common anti-abortion objection is that liberals want to fund abortions with taxpayer dollars (i.e. Medicaid), repealing the Hyde amendment should be off the table insofar as RAFSA’s language. That issue can be dealt with, via standalone legislation, separately and subsequently.

Also, RAFSA must specify that no doctor will be forced to perform an abortion if they have a conscience-based objection. Religious liberty can give pro-life doctors sovereignty without removing abortion access for pregnant women.

Similarly, states can still regulate informed consent statutes once the second trimester of a pregnancy begins. We can have federal oversight for the safety of abortion clinics — as long as the oversight is nonpartisan and objective.

RAFSA would go a long way toward balancing individual body sovereignty with the argument in favor of so-called “states’ rights.”

It would also shine a gigantic spotlight on the hypocrisy of conservative politicians who embrace “selective federalism” — such as Mitch McConnell’s recent murmurings over toying with the concept of a national abortion ban.

By adopting something very similar to these guidelines I’ve laid out for RAFSA, Democrats will be showing the American electorate that health and safety come first. Their party can be seen as prioritizing the needs of regular people over a historical tendency to pander to special interest groups.

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