[Congressional Record Volume 168, Number 128 (Monday, August 1, 2022)]
[Senate]
[Pages S3806-S3808]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. KAINE (for himself, Ms. Murkowski, Ms. Sinema, and Ms. 
        Collins):
  S. 4688. A bill to guarantee that Americans have the freedom to make 
certain reproductive decisions without undue government interference; 
to the Committee on the Judiciary.
  Mr. KAINE. Mr. President, for nearly half a century, the Supreme 
Court held that the right to make reproductive decisions was protected 
by the 14th Amendment. Generations of women have relied on the freedom 
to make reproductive health decisions as a matter of fundamental 
personal rights. In particular, seminal cases such as Roe v. Wade, 
Planned Parenthood of Southeastern Pennsylvania v. Casey, Whole Woman's 
Health v. Hellerstedt, Griswold v. Connecticut, Eisenstadt v. Baird, 
and Carey v. Population Services International established basic rights 
to obtain abortion services and access contraception.
  The Supreme Court's recent decision in Dobbs v. Jackson Women's 
Health overruled Roe v. Wade and Planned Parenthood of Southeastern 
Pennsylvania v. Casey, the landmark decisions holding that a woman's 
right to a pre-viability abortion is constitutionally protected. As the 
dissenters in Dobbs observed, this right is ``embedded in core 
constitutional concepts of individual freedom, and of the equal rights 
of citizens to decide on the shape of their lives.'' The Supreme 
Court's decision in Dobbs resulted in immediate abortion bans in 
several States and means that millions of women, particularly women who 
live in the South, parts of the Midwest, and the West, will live 
hundreds of miles from the nearest abortion clinic. In fact, 
approximately 17 million women could be forced to travel more than 200 
miles in order to obtain abortion care.
  Not only does the Supreme Court's decision in Dobbs upset decades of 
precedent protecting the right of Americans to make personal decisions 
about abortion, but it also places in jeopardy many other important 
14th Amendment rights, including the right to access birth control. 
Because the Supreme Court has abandoned constitutional protection of 
reproductive rights, it is the responsibility of Congress to act.
  That is why Senators Murkowski, Sinema, Collins, and I are 
introducing the Reproductive Freedom for All Act, bipartisan 
legislation to guarantee protections for reproductive and contraceptive 
care by enacting the essential holdings of the landmark cases Roe v. 
Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, Whole 
Woman's Health v. Hellerstedt, Griswold v. Connecticut, Eisenstadt v. 
Baird, and Carey v. Population Services International. The Reproductive 
Freedom for All Act returns Federal law to its pre-Dobbs status by 
allowing pre-viability abortions, prohibiting States from banning post-
viability abortions necessary to protect the life and health of the 
mother, and protecting access to contraception. The Reproductive 
Freedom for All Act creates a minimum Federal standard which states 
must follow. The bill also ensures that the U.S. Department of Justice 
or individuals adversely affected by a State abortion restriction can 
challenge any State restriction on reproductive freedom in court.
  The Supreme Court's overturning of Roe and Casey goes directly 
against the will of the people. More than 60 percent of Americans 
believe abortion should be legal in all or most cases. Support for 
reproductive freedom transcends regional, political, ethnic, and 
religious differences. Since support for reproductive freedom is 
nonpartisan among the public, it is important to have a legislative 
vehicle protecting that freedom that can gain bipartisan support.
  I urge my colleagues to support the passage of the Reproductive 
Freedom for All Act. It is imperative that Congress come together to 
ensure that decisions as fundamental as reproductive choice are not 
determined by the State or ZIP Code where someone lives.

[[Page S3807]]

  I thank my colleagues for standing together in support of a 
bipartisan solution to the crisis created by Dobbs. I also acknowledge 
the work of advocates supporting Michigan's Reproductive Freedom for 
All ballot initiative, which informed my work on this bill and which I 
hope will inspire similar efforts in other States. We must come 
together to pass the Reproductive Freedom for All Act now.
  Mr. President, I rise to essentially do a part two of a talk that I 
gave on the Senate floor about 2 weeks ago. The first part of my talk 
was my analysis of the Dobbs decision of the Supreme Court, expressing 
my deep disillusionment with the Court's decision to cast aside a 
century of precedent under the 14th Amendment due process clause and, 
in particular, casting aside 50 years of using the 14th Amendment to 
protect women's rights to make reproductive decisions with regard to 
contraception and abortion.
  I analyzed the Court's opinion and precedents at that time, but I 
sort of left it hanging what needs to be done because while we can 
critique the Court decision, and I do view it as completely ahistorical 
and not understanding the purpose of the 14th Amendment, nevertheless, 
the Court's majority ruling was the protection of reproductive freedom 
was now no longer a matter for constitutional protection but was, 
instead, for legislatures.
  The majority seemed to assume that that would be State legislatures, 
but at least one of the concurring opinions acknowledged legislatures 
could include Congress.
  And I take the floor today in the second part of this talk to discuss 
a bill that I have today introduced with three other Senate 
colleagues--Senator Sinema, Senator Collins, and Senator Murkowski--the 
Reproductive Freedom for All Act, taking the Supreme Court up on the 
challenge that what we need to do to protect reproductive freedom is to 
legislate to do so.
  Let me describe the origin of the bill. Beginning in February, the 
Senate has had two votes on a bill that I have cosponsored--the Women's 
Health Protection Act, which was designed--written before the Dobbs 
case but designed to protect reproductive freedom by disabling State 
legislatures from putting schemes and obstacles in the way of women 
making reproductive decisions.
  The first time we had a vote on that bill, I voted yes. It was in 
February. It received 49 votes. We were scheduled to have a second vote 
on the Women's Health Protection Act in May. And it occurred to me that 
we would likely have the same result; we would get 49 votes.
  And I had a strong feeling before that vote that if that was the 
case, we would be leaving votes on the table. By that, I understood 
from talking to my colleagues that there were more than 49 Members of 
this Chamber who wanted to codify Roe and related cases and protect 
women's rights to access contraception and abortion services but that 
it wouldn't be ideal to send a message that less than a majority of the 
Senate was committed to reproductive freedom. And so I began efforts in 
May to find additional votes beyond the 49 that I knew would vote yes 
on the WHPA. And I began discussions with colleagues, including 
Republican colleagues, to look for a way to codify Roe that, yes, might 
be different in wording from the Women's Health Protection Act but 
would accomplish the same goal of providing a Federal guarantee that 
would operate in every ZIP Code in this country to protect women's 
rights to make decisions about contraception and abortion.
  And today we have introduced that bill, the Reproductive Freedom for 
All Act. The name of it is a tribute to a ballot initiative that is 
currently under debate in Michigan and scheduled for a vote to be added 
to the Michigan Constitution in November, the Reproductive Freedom for 
All initiative. And the bill that we have put together fairly closely 
tracks--not identically but fairly closely tracks the language of the 
ballot referendum in Michigan.
  What does the bill do? We worked on the bill between the leak of the 
Dobbs opinion and when Dobbs was decided by the Supreme Court right 
before our July Fourth recess. And we worked to make the bill as strong 
as we could. But then we set it aside because we knew the Dobbs 
decision might change from the leaked opinion, and we wanted to see 
what was actually in the opinion before we finalized the bill. And it 
is good that we waited because there were some aspects of the Dobbs 
opinion that were a bit different. They took some sandpaper to some 
controversial parts of the case, and they extended other arguments in 
the case that needed a response.
  And so what we have done since Dobbs is analyzed the opinion but 
also, more importantly, looked at life in the United States since that 
decision was rendered. I could give many examples, even in the month 
since that decision has been rendered, of the tragedy of what I believe 
is now post-Dobbs America.
  In particular, when a 10-year-old child has to be smuggled across 
State lines to receive care following her rape, that is gruesome. That 
is not what this country should expect, nor, indeed, what we should 
tolerate. And yet that is not an accidental byproduct of the Dobbs 
decision. That was a completely foreseeable and even foreseen 
consequence of the Dobbs decision that turning it over to 50 States 
would lead to a patchwork of horrible examples one after the next.
  I have spoken about another example in Virginia. An individual who 
was living in Kentucky got a breast cancer diagnosis on the day the 
Dobbs opinion was leaked, went to her doctor and found out that her 
contraception could potentially cause accelerated growth of cancer 
cells. And so she needed to come off contraception to get cancer 
treatment. She has two young children. She is worrying about her own 
cancer. She is trying to keep herself healthy for herself but also for 
her young children. If she were to come off contraception, there would 
be the chance of an unwanted pregnancy. The cancer treatments also 
would significantly degrade the possibility for a healthy pregnancy, 
but she was now living in a State that, post-Dobbs, would not allow her 
to have an abortion.
  She wrote a piece about this in NBC News. She was fortunate enough to 
be able to move and get a new job in Virginia, where she would be able 
to make these choices, but these are the kinds of choices, post-Dobbs, 
people have to make every day: Do we smuggle a youngster across State 
lines or does someone move from one State to the next? Every person in 
this country, no matter what ZIP Code they live in, should have a basic 
Federal guarantee about contraception and availability of abortion 
services.
  What the Reproductive Freedom for All Act would do would be, 
essentially--we tried to put ourselves in a time machine after Dobbs 
and travel back to the day before the Dobbs decision. It was a very 
narrow focus. You can look at this in other ways. Some folks didn't 
like what the law was the day before the Dobbs decision. But in order 
to find some bipartisanship--because, truly, the American public, on a 
bipartisan basis, wants to preserve reproductive rights--we looked at 
could we come up with a Federal statutory guarantee that would match 
the state of constitutional law that existed the day before the Dobbs 
decision and protect the rights of all to contraception access and also 
protect the rights of all to abortion access as it existed before 
Dobbs.
  Simply put, that is this; that prior to fetal viability, no State can 
pass any statute regulating abortion that imposes an undue burden on a 
woman seeking to exercise that right. And post-viability, while a State 
can more significantly regulate abortion, no State can deprive any 
woman of the right to receive an abortion should she and her health 
providers determine that it is necessary to protect her life or health.
  That is the bill that I have introduced today with Senators Collins, 
Murkowski, and Sinema. I thank them for working to try to show--because 
now we have shown that there is not a minority of the U.S. Senate, but 
there is actually a majority that wants to codify Roe and related 
cases; that we might have some differences of opinion about the right 
language to use to do that, but there is a difference between a Senate 
where that is only a minority sentiment and a Senate where, like in the 
rest of the American public, that is a majority sentiment.
  The last thing I will say is this. I am very well aware, as are my 
cosponsors

[[Page S3808]]

in introducing that bill, that we do not have the votes today, should 
it be put up, to get 60 votes in the Senate for it. We don't. Yet I am 
given some inspiration by the fact that we recently passed a gun safety 
bill where 2 months before there were not 60 votes either. In fact, for 
the 10 years I have been in the Senate, we have been trying to pass 
legislation in this Chamber to deal with the scourge of gun violence 
and again and again and again have fallen short of 60 votes even to 
proceed to legislation. But in the aftermath of tragedies in Buffalo 
and Texas, a decision was made by the Members of this deliberative body 
that inaction was no longer an option and resolute action to protect 
people's rights and safety was a mandate.
  I believe the Dobbs decision and what we have seen since is a 
catastrophe that, as it plays out over time in State after State, will 
also change the dynamic in the article I branch and demonstrate the 
need for a national protection for reproductive rights rather than a 
50-State free-for-all in a race to the bottom.
  It is in that spirit my colleagues and I have introduced this 
bipartisan bill today demonstrating that there is now bipartisan 
support and majority support in the U.S. Senate to protect reproductive 
freedom for all.
  Ms. COLLINS. Mr. President, I rise today to join in the introduction 
of the Reproductive Freedom for All Act, a bipartisan bill that would 
ensure the right of women to make certain reproductive choices without 
undue government interference.
  I support a woman's right to have an abortion, and I believe that the 
threshold question of whether or not abortion is legal needs to be 
consistent at the national level. States can account for regional 
differences with regulations like parental notification requirements, 
but the basic right needs to be the same regardless of the State in 
which a woman happens to reside.
  In its decision in Dobbs v. Jackson Women's Health Organization, the 
U.S. Supreme Court abandoned a nearly 50-year precedent that had been 
reaffirmed and on which women had relied for decades. The Dobbs ruling 
was, as the Chief Justice described it, a ``jolt'' to our legal system. 
This action has further divided the country at a moment when now, more 
than ever in modern times, we need the Court to demonstrate 
consistency, predictability, and restraint.
  Prior to the Court's decision in Dobbs, I introduced, with Senator 
Murkowski, the Reproductive Choice Act to enact in to Federal law the 
abortion rights established by Roe v. Wade and affirmed by Planned 
Parenthood v. Casey.
  In the wake of the Dobbs decision, I have worked with my colleagues 
Senator Kaine, Senator Murkowski, and Senator Sinema in drafting a more 
comprehensive, bipartisan bill that would codify the abortion rights 
articulated by the Supreme Court in Roe, Casey and Whole Women's Health 
v. Hellerstedt, as well as the contraception rights first articulated 
in Griswold v. Connecticut and later clarified in Eisenstadt v. Baird 
and Carey v. Population Services International.
  Our legislation would enshrine important abortion and contraception 
rights into Federal law without undercutting basic conscience 
protections that have been in place for decade and that are relied upon 
by healthcare practitioners who have religious objections.
  Our goal with this legislation is to do what the Court should have 
done--provide consistency in our laws that Americans have relied upon 
for five decades regarding the ability to make certain reproductive 
choices.
  Mr. President, this bill maintains the pre-Dobbs status quo. In other 
words, it would ensure that the legal framework in place before Dobbs 
remains the law of the land. Our bill accomplishes this goal by 
tracking the Supreme Court's language in the seminal cases I mentioned.
  Specifically consistent with decades of Supreme Court jurisprudence, 
the Reproductive Freedom for All Act provides that a State may not 
impose an undue burden on the ability of a woman to choose whether or 
not to ternate a pregnancy before fetal viability.
  During this time Sates may enact reasonable regulations to further 
the health or safety of a woman seeking to terminate a pregnancy, 
unless such regulations impose an undue burden.
  After fetal viability, a State may regulate or even proscribe the 
ability of a woman to terminate her pregnancy but not when such a 
termination is necessary to preserve the life or health of the woman.
  Moreover, by codifying Griswold, Eisenstadt, and Carey, the bill 
makes clear that a State cannot prohibit an individual from obtaining 
or using contraceptives.
  Finally the legislation specifically protects conscience protections 
that have been relied upon by healthcare providers who have religious 
objections.
  Mr. President, the best path forward for our country is to maintain 
the same legal framework that was in place just weeks ago before the 
Supreme Court issued its ruling in Dobbs. Our bill would enshrine into 
law the important protections articulated in the Supreme Court cases 
that I mentioned without undercutting statutes that also have been in 
place for decades.
  I urge all of my Senate colleagues to join me in supporting this 
legislation.

                          ____________________