The Abortion Vote That Could Haunt Democrats in November

By John McCormack

Thursday, March 31, 2022

 

Parental rights have become a major flashpoint in American politics. Democrat Terry McAuliffe’s statement that “I don’t think parents should be telling schools what they should teach” cost him dearly in last year’s Virginia gubernatorial race. But Senate Democrats don’t seem to have learned much of a lesson from McAuliffe’s mistake: They recently voted — almost unanimously — in favor a bill that would strike down laws requiring parental consent or parental notification before a minor has an abortion. And that vote could haunt Democratic candidates in November.

 

Take, for example, the case of Arizona Democratic senator Mark Kelly, who is up for re-election this year in what will likely be one of the most competitive races in the country. When I recently asked Kelly if the bill he voted for, the Women’s Health Protection Act (WHPA), would invalidate Arizona’s parental-consent law, the Arizona senator told me he didn’t know. “I think that’s something that you could, you know, reach out to the Congressional Research [Service] folks and figure out,” Kelly said. He did, however, express general opposition to parental-consent laws, saying he would not be the “arbiter of an age” at which a minor could choose to have an abortion without her parents’ involvement.

 

The office of GOP senator Steve Daines, the chairman of the Senate Pro-Life Caucus, tells National Review that it confirmed with the Congressional Research Service that Arizona’s parental-consent law would likely be struck down under the WHPA.

 

But you don’t need experts’ analysis to figure that out — you just need to read the bill: The version of the WHPA that House Democrats almost unanimously voted for in September 2021 — the same version that received a vote in the Senate on February 28 of this year — explicitly states that “access to abortion services has been obstructed” by “parental involvement laws (notification and consent).”

 

The bill generally invalidates state laws that limit abortion. “The basic principle is that there can be no restriction that is not also imposed on a medically comparable procedure. If they single out abortion or reproductive rights, it’s going to fall foul,” said Senator Richard Blumenthal of Connecticut, a chief sponsor of the WHPA, when he first proposed it in 2013.

 

The original 2013 version of the WHPA explicitly exempted some popular abortion laws from this general rule — including laws banning partial-birth abortion and “requirements for parental consent or notification before a minor may obtain an abortion.” When the WHPA was reintroduced in 2015 and again in 2017, the bill still included those carveouts for parental-consent and parental-notification laws. But after the 2018 “blue wave” that swept Democrats back into power in the House and cost a handful of moderate Democratic incumbents Senate seats, the exemptions for parental-involvement laws were quietly dropped from the WHPA.

 

Shortly after Senate Republicans and West Virginia Democrat Joe Manchin voted to filibuster the WHPA last month, I asked Senator Blumenthal why Democrats had decided to drop the parental-consent carveouts and whether he agreed that the WHPA would strike down state parental-involvement laws. “I’d have to get back to you,” Blumenthal replied in response to each question. When I followed up with him later, he said the bill “would preclude medically unnecessary laws” but refused to specify whether parental-involvement laws fell into that category.

 

Other Senate Democrats similarly dodged the question. Colorado senator Michael Bennet wouldn’t say whether the WHPA would strike down Colorado’s parental-notification law. “We were just voting on a motion to proceed” to debate on the bill, Bennet said, so questions about specific provisions were “premature” though he would be “happy to answer them when they’re relevant.” But Bennet didn’t merely vote to start debate on the bill; he is one of 48 Democratic senators who cosponsored it, and now he is unwilling or unable to say what effect it would have on existing laws in his own state.

 

Michigan senator Gary Peters, the chairman of the Democratic Senatorial Campaign Committee, told National Journal on March 1: “Reproductive health for women is a powerful issue and one that we will certainly be campaigning on in the fall.” When I subsequently asked Peters if he supported getting rid of parental-consent laws, he replied: “Parents should always be involved in decisions for their children.” When pressed on if the bill he’d voted for would strike down state laws mandating such involvement, Peters gave the same non-answer: “I would certainly want parents to continue to play a key role in decisions for their children.”

 

Mark Kelly, the endangered Arizona incumbent, was less equivocal.

 

“As a parent myself, somebody who has raised two daughters who are now in their mid 20s, I take this very seriously. But ultimately I feel that young women at a certain age should have the rights to make these kind of decisions with their doctor,” Kelly told National Review in the Capitol. But at what age should a minor be able to make that decision without parental consent? “I’m not going to be the arbiter of an age and a timeline and red line,” Kelly said. “You know, people ask, ‘Is there a red line here?’ No. But, I think it’s important for women to be able to make these decisions on their own, and not a bunch of folks in Washington making them for them.”

 

Among the five Senate Democrats NR questioned about the WHPA, only one, Tim Kaine of Virginia, explicitly argued that the bill wouldn’t affect state parental-consent laws.

 

“I’m a parental-consent supporter, and I’m a Hyde amendment supporter, and [the WHPA] didn’t affect either of those,” Kaine told NR, pointing to a provision in the bill that allows restrictions on abortion procedures “as long as those requirements were also for other medical procedures.”

 

“Any procedure for a minor, you gotta get parental consent,” Kaine said. “Parental consent for medical procedures is ubiquitous.”

 

What to make of Kaine’s argument? First, it is simply not true that requiring “parental consent for medical procedures” is a “ubiquitous” feature of state laws. In New York, for example, minors generally need parental consent for other surgical procedures but not for abortions.

 

Second, it would be up to the courts to decide whether the WHPA allowed generally applicable parental-consent laws to be applied to abortion at the state level. The text of the bill instructs courts to “liberally” interpret its provisions and prohibits any regulation or restriction that “expressly, effectively, implicitly, or as implemented singles out the provision of abortion services” and “impedes access to abortion services.”

 

Third, even if the WHPA allowed for generally applicable parental-consent laws to be applied to surgical abortions, those laws wouldn’t necessarily apply to medication abortions. “No Arizona law requires parental consent for prescription medications for minors, including contraceptives,” according to the Center for Arizona Policy. As the Guttmacher Institute notes, a 1977 Supreme Court ruling held that there is a “constitutional right to privacy for a minor to obtain contraceptives in all states.”  If the WHPA became law, it is hard to see how a state could allow a minor to obtain contraceptive pills but not abortion pills such as RU-486, which is used to kill an unborn child during the first nine weeks of pregnancy.

 

The evasiveness of Democratic senators about the WHPA’s potential effect on parental-involvement laws shouldn’t be surprising, given the consistently high popularity of such laws among voters. According to the Guttmacher Institute, “37 states require parental involvement in” — i.e. parental consent to or notification of — “a minor’s decision to have an abortion.” In 2011, when Gallup last asked Americans whether they favored a “law requiring women under 18 to get parental consent for any abortion,” 71 percent said yes while only 27 percent said no. Asked why the organization hasn’t polled that particular question in the years since, a Gallup spokesman told National Review in an email that “we consistently found that about seven in 10 [Americans] support that proposal across nearly two decades of polling on it. So part of the reason we haven’t updated it recently is because of how little it has changed.”

 

The Senate Democrats’ vote for the WHPA on February 28 was overshadowed by the war in Ukraine, which was then in its opening days. But following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health, which is expected to be handed down this summer, the issue of abortion should once again come to the forefront of American politics for at least some period of time.

 

Democrats have made a big, risky bet on a bill that strikes down parental-consent laws and enshrines a right to abortion through all nine months of pregnancy in all 50 states. And if abortion issues play a prominent role in the stretch run of this year’s midterm cycle, they could very well pay dearly for it.