WASHINGTON — Republicans are widely expected to take their first House majority in a post-Roe world next year, encountering a legal landscape conducive to tighter federal restrictions on abortion.
Previous GOP majorities have eagerly embraced the goal and repeatedly passed bills to federally ban abortion after 20 weeks of pregnancy only to see those proposals blocked by Senate Democrats.
Republicans in the Texas congressional delegation rejoiced at Roe’s fall, but many are now downplaying the prospects for federal legislation next year and instead say the issue is up to state legislators.
Rep. Michael Burgess, R-Pilot Point, is an OB-GYN who has co-sponsored the 20-week ban in this Congress along with a bill that would federally establish life as beginning at conception.
But in a brief interview earlier this summer, Burgess responded to questions about those proposals by simply stating the Supreme Court ruled the issue belongs to the states.
“Appropriately, we would say that’s the purview of the state,” Burgess said. “I think things are pretty clear. It is back to the jurisdiction of the state.”
It’s an issue loaded with midterm implications as Democrats view pro-Roe public sentiment as a bright spot in what is otherwise a bleak political environment for them, with voter angst over inflation and the economy.
Abortion will be a common campaign theme for Democratic candidates as they seek to highlight Republican support for more restrictions on access.
In an interview, Rep. Al Green, D-Houston, pointed to Republicans’ determined efforts to confirm the new conservative Supreme Court justices who just voted to overturn Roe, the landmark 1973 ruling in a case that originated in Dallas County.
“They are not content knowing that in certain red states, they can impose laws and restrictions,” Green said. “They would like to have universal laws and restrictions that apply to the nation as opposed to allowing states to make these decisions, which is what they said they fought for.”
Capitol Hill Republicans, however, seem more eager to focus on other issues such as inflation, crime, immigration and border security.
Rep. Beth Van Duyne, R-Irving, said in an interview that abortion policy should be set at the state level.
“I think that’s where that decision, that discussion, belongs, where the people are closer to their elected representatives,” Van Duyne said.
Groups want action
Not all abortion rights opponents share that perspective, however.
Susan B. Anthony Pro Life America last month sent GOP lawmakers a memo, obtained by Axios, that laid out abortion-related talking points and encouraged members to criticize the “extremism” of Democrats’ proposals to federally guarantee abortion access.
But the group also exhorted Republicans to play offense at the federal level in the wake of the Supreme Court ruling in a case involving a 15-week ban in Mississippi, Dobbs v. Jackson Women’s Health.
“First and foremost, it’s important to note that federal pro-life lawmakers must not abdicate their role in defending life following Dobbs,” the group said in the memo. “The rights of fragile unborn children cannot simply be ‘left to the states,’ especially considering that at least 20 states or more are expected to continue to have policies of abortion on demand.”
Those states account for more than half of abortions nationwide, the group said.
“That’s why pro-life members of Congress have a duty to advocate for legislation recognizing the rights of unborn children, saving as many lives as possible, and building consensus to save more,” the group said.
While Republican proposals on abortion are unlikely to become law in the near future, their approval by the House would send a signal and help influence the trajectory of discussions around abortion, said Rebecca Parma, senior legislative associate at Texas Right to Life.
“We’re glad that that authority is back at the state level and we’re doing everything we can in Texas, but as a pro-life movement we don’t want any pre-born children being subject to abortion anywhere in the country,” Parma said.
A trio of proposed federal abortion bans reflects where Republicans could go on abortion if they retake the House.
The one most likely to move forward would make it a crime to perform an abortion at 20 weeks or more, with violators facing up to five years in prison.
It includes exceptions to save a mother’s life or when the pregnancy resulted from rape or incest. Republicans also have talked about revising its cutoff down to 15 weeks, similar to the Mississippi law at the heart of the Dobbs decision.
A second bill would make it a crime, also punishable by up to five years in prison, for a doctor to perform an abortion if the fetus has a detectable heartbeat, which typically happens about six weeks into a pregnancy.
That bill provides an exception to save the life of a mother facing physical, but not psychological or emotional, illness.
A third bill would declare that life begins at conception, a proposal that has been described as a total ban on abortion but which would raise additional legal questions.
Rep. Jake Ellzey, R-Midlothian, has co-sponsored all three and was asked during a recent appearance on "Lone Star Politics" about the federal heartbeat bill.
Ellzey said he was proud to have co-sponsored it, but noted he did so before the court overturned Roe and the Dobbs ruling means “it is not a federal issue, it is now a state issue.”
Kansas surprise
Leaving it to the states might not work out as well for abortion opponents as they previously thought.
Voters in deep red Kansas recently shocked many observers by overwhelmingly rejecting a proposed anti-abortion amendment to the state’s constitution.
Asked if he’s still comfortable leaving abortion issues to the states after the Kansas vote, Ellzey noted that Texas has adopted its own anti-abortion laws and said he’s confident that “federalism truly works” as the Founding Fathers envisioned.
“Not all states are the same in how they look at these issues and that’s where it is,” Ellzey said.
Rep. Pat Fallon, R-Sherman, has signed on to all three of those chief Republican abortion ban bills. In an interview, he underscored his support for exceptions in the case of rape and incest.
“I just don’t think that a raped woman should be forced to and compelled for nine months to have the child when through no fault of her own she was impregnated,” Fallon said.
He criticized Roe v. Wade and said abortion should be a state issue, even after the Kansas vote.
“So nothing will change in Kansas,” Fallon said. “Many of the states like New York, Illinois, California, you know, the Democrats control, nothing will change. In Texas things are going to change, but that’s the will of the voters.”
Fallon added that he would consider supporting a federal 15-week ban but said such a proposal would almost certainly fall short of the 60-vote threshold required to break a guaranteed filibuster by Senate Democrats.
“I’d like to see us spending time on things that we can actually get through the chambers and then to the president’s desk,” he said.
Rep. Kay Granger, R-Fort Worth, is the only Republican in the Texas House delegation who has not co-sponsored at least one of the three big Republican abortion ban proposals this session.
Granger drew conservative criticism for describing herself as a “pro-choice Republican” in a 2007 TV interview, but her votes for federal abortion restrictions in more recent years have earned her the support of anti-abortion groups.
Spokeswoman Sarah Flaim said in a statement that Granger has “long been an advocate for life.”
Flaim noted Granger voted in favor of the 20-week ban repeatedly during past sessions and has co-sponsored a bill that would require care for babies who survive an abortion.
Supporters of that bill say it’s an effort to stop infanticide, while Democrats say it would expose health care providers to liability in cases when babies are born with extreme, fatal abnormalities and provided with “comfort care” before dying.
Granger also has co-sponsored legislation intended to block taxpayer funding of abortions and fought on the House Appropriations Committee to preserve what is known as the Hyde Amendment, which is included in annual spending bills and tightly restricts the use of federal funds for abortions.
If Republicans retake the House, Granger is likely to be the next chair of the Appropriations Committee, a position from which she can block Democrats’ efforts to eliminate the provision.
“If Republicans retake the majority next year, Congresswoman Granger will continue to fight to protect our vulnerable unborn children,” Flaim said.
If the House does act on a national abortion ban, Senate Democrats are sure to block it from reaching President Joe Biden’s desk.
Sens. Ted Cruz and John Cornyn, R-Texas, have both supported the national 20-week ban in the past. Cruz stressed earlier this year that it’s something of a moot point given the Republican position on respecting the filibuster and Senate Democrats’ determined opposition.
Cornyn hit similar points but also endorsed the idea that the issue is up to the states now.
“I think it’s important to get these decisions made at the state level, not here in Washington, D.C.,” Cornyn said. “The opinions about abortion vary dramatically by region and the state and I think what we need to do is find a way to bring some predictability and stability to it by allowing local voters through their elected representatives to choose whether to be more permissive or more restrictive.”
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