A protest at the Supreme Court in January 2007

WASHINGTON (WOMENSENEWS)–The day after the Supreme Court upheld a controversial abortion ban, pro-choice politicians mounted a counteroffensive from the legislative branch of government across the street.

Democrats Sen. Barbara Boxer of California and Rep. Jerrold Nadler of New York–two leading supporters of abortion rights in the U.S. Congress–reintroduced the Freedom of Choice Act, which would codify in federal law the rights established in Roe v. Wade, the 1973 Supreme Court ruling that found abortion was part of a woman’s constitutional right to privacy.

"We can no longer rely on the Supreme Court to protect a woman’s constitutional right to choose," said Nadler, who chairs the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. "This Supreme Court may have gone out of the business of protecting women’s rights; it is time that Congress stand up to the challenge."

If passed, the Freedom of Choice Act would likely lead to court challenges that could overturn the ban upheld Wednesday. The federal ban okayed by the high court Wednesday does not include an exception to protect the health of the woman, a precedent laid out in Roe v. Wade.

The Democrats’ bill would also bar government at any level from passing laws that outlaw abortion before the fetus is viable or after viability if the woman’s health or life is endangered. It is unclear how the law would apply to future or past restrictions on access to abortion.

Supporters say the legislation will help inoculate women from a wave of new restrictions to abortion that is expected to follow Wednesday’s court decision. Advocates on both sides of the issue agree that the court’s ruling gives a green light to further chip away at reproductive rights and could even embolden efforts to ban abortion altogether.

Response to Court Ruling

ep. Jerrold Nadler

At a press conference in the Capitol Building Thursday, pro-choice activists rallied around the Democrat’s bill as a way to counter Wednesday’s Supreme Court decision.

"Pro-choice leaders like Sen. Boxer, Rep. Nadler and the bill’s other cosponsors understand that government should not interfere in personal, private medical decisions," Nancy Keenan, president of NARAL Pro-Choice America, a leading reproductive rights advocacy group in Washington, D.C., said at the news conference. "We applaud their efforts to stop anti-choice attacks and protect a woman’s right to choose by introducing the Freedom of Choice Act."

Seven states have passed their own versions of the Freedom of Choice Act, according to NARAL Pro-Choice America. They are California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.

At the federal level prospects are cloudy for the bill, which has been introduced in previous Congresses but has failed to win passage.

For starters, strongly anti-choice President Bush would almost certainly veto any legislation that codifies Roe v. Wade into federal law.

Meanwhile, even though Congress is now controlled by the Democrats, pro-choice activists cannot count every member of the majority party as an ally.

Slim Majority

Senate Majority Leader Harry Reid, a Mormon from Nevada, opposes abortion in most cases. And Democrats, with their slim majority of 51 seats, lack the 60 votes needed to override a likely filibuster.

In the House, Speaker Nancy Pelosi of California is a solid supporter of abortion rights, and a spokesperson confirmed her support of the Freedom of Choice Act shortly after it was introduced.

But she presides over a chamber that opposes abortion, said Ted Miller, a spokesperson for NARAL Pro-Choice America. Miller says 219 House members oppose abortion, out of a total membership of 435.

The bill might be able to go farther than it has in the past, a reproductive rights advocate said, but couldn’t predict if it stood a chance of passage. The advocate spoke on the condition of anonymity because she did not want to publicly assess the bill’s chances of success.

Some members of Congress, however, may make this is a priority now that the Supreme Court has demonstrated what many court-watchers see as an ideologically hostile bent on abortion-related issues.

In its ruling on Wednesday the Supreme Court said it was upholding a ban on a procedure that it identified as intact dilation and evacuation even though the law made no exception for women who might require that particular procedure for health reasons.

Offensive Switch

The legislative counteroffensive marks a new era in Congress in which pro-choice lawmakers are taking the offensive, a contrast to the past dozen years, when Republicans held the reigns of power and presided over a series of legislative efforts to restrict access to abortion.

The ban upheld by the court on Wednesday sailed through Congress in October 2003. With the court ruling to uphold it, the law is expected to take effect within the next month.

The House backed the measure 281-142; the Senate 64-34. In both chambers a considerable number of Democrats voted for the bill and Bush signed it into law that November. Until Wednesday, it was held back by legal challenges to its lack of a health exception for the woman.

Under the law, a woman would still be able to access certain kinds of second trimester abortions but would not necessarily be able to have the banned procedure, even if her doctor considered it the safest and best for her individual circumstances. Doctors found guilty of breaking the law could face up to two years in prison.

Wednesday’s ruling was the court’s first major decision on the issue of abortion since the 2006 retirement of Sandra Day O’Connor, the whose support for limited abortion rights made her the court’s swing vote on the issue.

Two George W. Bush appointees–John Roberts and Samuel Alito–have joined the court since O’Connor’s retirement and the death of former Chief Justice William Rehnquist, who consistently voted against reproductive choice.

"Justice O’Connor retired and President Bush and a Republican Senate replaced her with a reliably anti-choice vote on the Supreme Court," Nadler said. "It is clear today that the far-right’s campaign to pack the Supreme Court has succeeded and that women and their families will be the losers."

Allison Stevens is Washington bureau chief at Women’s eNews.

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