Senate Judiciary kicks off series of abortion policy hearings

Democrats look for ways to protect access, but options are limited

Republican Sens. Tom Cotton of Arkansas, left, and Mike Lee of Utah attend a Senate Judiciary Committee hearing titled “A Post-Roe America: The Legal Consequences of the Dobbs Decision" on Tuesday.  (Tom Williams/CQ Roll Call)
Republican Sens. Tom Cotton of Arkansas, left, and Mike Lee of Utah attend a Senate Judiciary Committee hearing titled “A Post-Roe America: The Legal Consequences of the Dobbs Decision" on Tuesday. (Tom Williams/CQ Roll Call)
Posted July 12, 2022 at 4:26pm

An hour before the Supreme Court issued its June 24 decision overturning the national right to an abortion, the chief medical officer for Planned Parenthood of the St. Louis Region and Southwest Missouri issued a personal plea to Health and Human Services Secretary Xavier Becerra: Please declare a public health emergency related to abortion. 

In the weeks since that decision, Colleen McNicholas, who made her case to Becerra at an event with Rep. Cori Bush, D-Mo., said wait times for appointments in some areas of her state have shot up from three to four days to three weeks. 

“Senators, I come before you tired, frustrated and angry," McNicholas told members of the Senate Judiciary Committee on Tuesday. "Those on the front lines don’t need more empty gestures. We need action, and we need it now. We are out of time."

Her remarks echoed a sentiment expressed by many abortion rights advocates as the committee launched the first of what will be a series of congressional hearings on the impact of the Supreme Court’s decision. Last week, a coalition of abortion rights groups called on the administration to meet with them and take further action to counter the high court's decision.

By scheduling a series of hearings on the Supreme Court decision, Democrats hope to signal they are looking for ways to protect abortion access. But legal and procedural constraints have limited what can be accomplished. 

Senate Judiciary Chairman Richard J. Durbin, D-Ill., signaled during opening remarks that Democrats would implement a federal statutory right to abortion but did not expand on how this would happen.

Republicans, including Sen. Tom Cotton of Arkansas, by contrast, focused on upticks in violence that have targeted clinics, including pregnancy centers that oppose abortion. Cotton asked all witnesses to condemn violence.

The Judiciary hearing is the first of five congressional hearings on the aftermath of the Dobbs v. Jackson Women's Health Organization decision to be held over an eight-day period. The Senate Health, Education, Labor and Pensions, House Oversight and Reform, House Judiciary and House Energy and Commerce committees will also have hearings in the coming days.

Each committee’s examination of the ruling is expected to be slightly different, with Judiciary looking at the legal ramifications of letting all states limit abortions pre-viability for the first time since the 1973 Roe decision.

The administration has hesitated to immediately implement some of the actions called for by advocates, including instituting a public health emergency or using federal property to operate abortion clinics. Both moves could tread into tricky legal territory.

Students for Life of America led a letter to lawmakers from anti-abortion advocates this week warning against the latter, saying it would be “likely violating the applicable state’s right to protect the health and welfare of women and the unborn.”

However, some Republican states have begin discussing proposals to limit interstate travel by residents to a state where abortion would be legal — a move that Democrats have also said would be illegal.

The House Rules Committee will likely tee up a floor vote this week on two abortion-rights bills, one that would broadly expand the right to receive and perform an abortion and another travel bill that would protect interstate travel to seek an abortion where the procedure is legal.

Judiciary witnesses weighed in on both bills, which would be unlikely to be passed by the Senate without removing the legislative filibuster.

Denise Harle, senior counsel and director of The Center For Life at the Alliance Defending Freedom, called the first abortion bill a “gross overreach” and “problematic.”

“As a constitutional matter, I don't think a congressional attempt to mandate abortion would be held up in court, and as a policy matter, it’s a horrific idea, and I think we should be embarrassed that the United States is even considering something like that,” she said. She added that the bill, if enacted, would overturn a number of state laws already in place.

Khiara M. Bridges, a law professor at University of California, Berkeley School of Law, testified in favor of the bill.

“There is no question that Congress has the authority to pass" the bill that would effectively codify Roe, she said, calling it a "nice first step."

Citing the Constitution's commerce clause, Bridges said health care is an activity that substantially affects interstate commerce. She pointed to the Supreme Court ruling in 2012 in National Federation of Independent Business v. Sebelius, which upheld the 2010 health care law.

Sen. Dianne Feinstein, D-Calif., asked Bridges about legal protections states may need to protect patients traveling there to seek an abortion.

This comes as Sen. Catherine Cortez Masto of Nevada, Sen. Kirsten Gillibrand of New York and other Democrats introduced another similar travel protection bill. Sen. Patty Murray, D-Wash., also a co-sponsor of the bill, said during a news conference Tuesday that they will move for a Senate vote on the bill Thursday.

Bridges said the constitutional right to travel is clearly protected under Saenz v. Roe, a 1999 Supreme Court case, but that the Dobbs decision shows that long-standing precedent can be reversed by the court. 

Juliana Stratton, lieutenant governor of Illinois, said she was working with state leaders to see how the state can continue to expand abortion access.

Illinois is often the closest option for women traveling from states in the South and Midwest with strict abortion bans.

“We know that the potential criminalization of patients coming to our state is certainly of top of mind in Illinois," said Stratton. "But it's not just the patients, it's also the abortion care providers that also could potentially risk that same sort of criminalization."

Megan Mineiro contributed to this report.