Should Pro-Choice Libertarians Support the Women’s Health Protection Act?

On Tuesday morning, the Senate
Judiciary Committee
held a hearing on the “Women’s Health Protection Act,” which
was designed to “remove barriers to constitutionally protected
reproductive rights.” The bill—introduced last fall by Sens.
Richard Blumenthal (D-Conn.) and Tammy Baldwin (D-Wisc.)—aims to
stunt the growth of
state laws placing unnecessary restrictions on abortion
patients, clinics, and doctors.

These new regulations don’t directly attack the legality of
abortion but instead focus on the supposed medical risks for
women—risks which the medical community routinely denies. Still,
the new tack seems to be working. Already these sorts of
regulations
have been forcing abortion clinics to close: A Texas bill
passed in 2013 required 14 of the state’s 36 clinics to shut down.
Laws passed this spring
in Mississippi and
Louisiana would require these states’ only remaining abortion
clinics to close. 

Putting an end to this sort of infringement on women’s abortion
access is a noble goal. But it’s one thing to fight states
passing these
types of laws and another to say the federal government should
pass a law blocking states from passing these types of
laws. If the state laws are unconstitutional, shouldn’t that be
left to the courts to determine? Why a federal act? 

“We’re here today because 200 of these underhanded laws have
been passed” in 2011-2014, said Nancy Northup, president of the
Center for Reproductive Rights, in today’s committee hearing. “It
is not right that women should have to go to court year after year
to get the medical services that the constitution guarantees
them.”

I put this question to some libertarians I know, inside and out
of Reason, and received a range of responses. Some pointed
out that the text of the Women’s Health Protection Act was very
vague—under what standard do we determine if an abortion
restriction is “medically unwarranted” or oppressive? And under
what constitutional provision is Congress claiming the power to
enact this law?

But others said that when it comes to protecting individuals
from government intrusion, federal action can be appropriate; and
where government is passing laws to restrict itself to uphold the
Constitution, that can be a good thing. “I’m a peoples’-rights
advocate, not a states-rights advocate,” as one Facebook friend
commented. “What matters is if individual liberty is, on net,
increased.”

It’s perhaps worth noting that as courts have been striking down
these provisions, less state legislatures have been passing them.
According to reproductive rights organization the Guttmacher
Institute,
the number of new abortion restrictions passed in the first
half of 2014 is half that passed in the first part of last year (21
versus 41). Furthermore, the types of abortion
restrictions we’re seeing now are quite different than the ones
passing three or five or 10 years ago. As courts strike down
various state restrictions, anti-abortion advocates keep coming up
with new tactics. If Congress passed a law banning their pet
regulations du jour, you can sure bet new ones will spring up
Hydra-like in their place.

But this discussion is largely rhetorical anyway—there’s little
chance the Women’s Health Protection Act will go anywhere. As
another Facebook comment noted, this bill is “more a noise-making
venture than a legislative one.” A New
York Times editorial notes that “the bill stands
little chance of enactment in this Congress,” but still asserts
that the Senate hearing “can serve a valuable purpose if it alerts
legislators and the public to a pernicious charade by removing the
‘patina of respectability’ from what are essentially phony
restrictions of no medical value.”