California Senator and 2020 Democratic presidential candidate Kamala Harris has a plan for combating state-level abortion restrictions being passed in states across the country.
Modeled after the Voting Rights Act, the Reproductive Rights Act has a preclearance requirement that would require that states with a “history of violating Roe v. Wade obtain approval” from the Justice Department before any laws that would restrict abortion can go into effect.
This preclearance requirement was a key provision of the 1965 Voting Rights Act. It stipulated that changes to laws affecting voting in states with a history of implementing discriminatory voting practices would be subject to administrative review before they could go into effect. According to the Brennan Center for Justice, 86 proposed election changes were blocked between 1998 and 2013 due to this provision.
As the law currently stands, states are not explicitly barred from passing legislation that contradict the tenets of Roe v. Wade. These laws are therefore only blocked from taking effect if someone files a lawsuit to challenge them, thereby putting the onus on these individuals. The Reproductive Rights Act would change this so that the onus would instead be on the states to prove that the law in question doesn’t violate Roe.
“A preclearance requirement will make it harder for states to implement these dangerous and deadly laws and practices,” the proposal on Harris’ website reads. “Like the blatant voter suppression the Voting Rights Act was designed to prevent, these restrictions on abortion fall disproportionately on people of color.”
Any state that has a history of violating Roe v. Wade in the last 25 years would be subject to this preclearance requirement, including in states such as South Carolina, Iowa, and Georgia. Until the DOJ rules on the law in question, it would continue to be legally unenforceable. The proposal also includes a provision to insulate it from anti-abortion administrations, whereby individuals will “have the ability to challenge DOJ’s approval of a law or practice in federal court, serving as a check on hostile administrations.”
Between 2011 and 2015, 288 abortion restrictions have been enacted at the state level, according to the Guttmacher Institute. In recent months, states from Alabama to Missouri have passed laws that range from banning abortion after eight weeks of pregnancy to a near total ban on abortion.
Harris is not the only Democratic presidential candidate to unveil proposals for curbing state-led efforts to restrict abortion. Several others, including Sens. Elizabeth Warren, Kirsten Gillibrand, and Cory Booker have proposed codifying abortion laws—but Harris believes this is not enough.
Harris’ plan would face an uphill battle to be implemented: it would require Senate approval, which will be challenging if it remains under Republican control.
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