What Would Federal Preclearance Mean for State Abortion Laws?

State legislatures this year have passed some of the strictest abortion laws on record. Kentucky moved to make abortion after a fetal heartbeat is detected a felony. Ohio, Georgia, Louisiana, Mississippi, similarly passed “heartbeat bills,” essentially banning abortion after roughly six weeks into a pregnancy. Other states have created mandatory waiting periods, ultrasound requirements, and stricter standards for medical providers. Several states have passed provisional measures that would outlaw abortion if Roe v. Wade were overturned. 

These laws were championed by anti-abortion state lawmakers who said they hope they will survive expected legal challenges once they arrive at the Supreme Court, which now has a solidly conservative majority. While it remains unclear exactly what the high court will do when it considers the laws, Democratic presidential candidates are planning for a country that will have a patchwork of abortion standards, should one of them be elected in 2020. So far, candidates have suggested measures like pushing Congress to codify Roe into federal law, appointing judges who support Roe, repealing the Hyde Amendment (which generally bans federal funding from being spent on abortions), and increasing funding to Planned Parenthood.

Kamala Harris, however, has said she wants to take her fight for abortion rights directly to state legislators. On her campaign website, Harris writes that “extreme politicians in state legislatures have been working to systematically chip away at Roe for decades,” passing over 1,000 state laws in the past two decades that limit or place restrictions on abortions.

The idea is to create a preclearance system for new state abortion laws, which would give the federal government the authority to block new laws before they go into effect. 

Harris first proposed the concept in May, and brought it up again in the Democratic debate this week. “States that have a history of passing legislation that is designed to prevent or limit a woman’s access to reproductive health care [will have to] come before my Department of Justice for a review and approval,” she said. “Until we determine that they are constitutional, they will not take effect.”

The proposal—which is unlikely to be embraced by the current Senate—is modeled after a preclearance requirement nestled in the Voting Rights Act of 1965, which required nine southern states and several counties outside the south with a history of restricting black residents from voting to get approval from the Justice Department before new electoral changes could be enacted. That provision of the VRA was struck down in 2013, when a majority of the Supreme Court declared the practice no longer necessary after decades of progress in stopping racial discrimination at the polls. 

Legal scholars who have looked at applying preclearance to new abortion laws have said they see a way the idea could survive a court challenge, even given the decision in Shelby County v. Holder that parts of the Voting Rights Act were unconstitutional. In his majority opinion, Chief Justice Roberts wrote that the 1965 law was “based on 40-year-old facts having no logical relationship to the present day,” and that if Congress wants to apply rules to selective states, they “must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”

It’s possible that with the spate of recently passed abortion laws, a preclearance system like the one Harris proposed would withstand a constitutional challenge if the court maintained the same requirement—that preclearance must be determined based on “current conditions.”

In a paper on the possibility of applying tactics for expanding voting rights to abortion rights, Stanford Law School professor Pamela S. Karlan explained that a right to vote and a right to decide whether to terminate a pregnancy share a similar background over the last 50 years. For both rights, Karlan wrote, “the Supreme Court first ratcheted up and then relaxed the level of judicial scrutiny; both are now subject to an undue burden standard … in several recent cases, courts have begun to analyze burdens on voting rights and access to abortion in ways that take account of how people actually live.”

Similar to the preclearance requirement of the Voting Rights Act, Harris’ plan would essentially create a process within the Department of Justice to evaluate whether a state’s new abortion law creates an “undue burden” on women seeking abortions.

But not every state would be subjected to the preclearance system—Harris suggests that the DOJ only monitor states and localities with a history of passing laws that have been found to violate Roe v. Wade in the past 25 years. South Carolina, Iowa, and Georgia are three examples of states that would fall under the new system. Any change to abortion laws in preclearance states would then be “legally unenforceable” until the Department of Justice signs off on the new standards. 

Skeptics say they doubt the idea could survive a court challenge. “[The Supreme Court] would reject this plan as soon as humanly possible,” explained Elie Mystal in Above the Law. Mystal noted that while the court said that “current conditions” of preclearance could be reevaluated in the case of the Voting Rights Act they also noted that the system represented an “extraordinary departure from the traditional course of relations between the States and the Federal Government.”

“This is how [Chief Justice John] Roberts reacts to … the most successful civil rights legislation in American history,” Mystal wrote. “Wherever we are on voting rights, the fundamental principle that ‘people should get to vote’ is at least widely accepted … We’re not there with abortion. Getting courts to rule all of these anti-woman laws unconstitutional on a case-by-case basis is actually a lot easier than getting courts to agree that the states can’t pass these laws in the first place.”

Eric Scheidler, executive director, of the Pro-Life Action League said that the current system of having courts review state laws is working. “It would be blatantly, baldly, and boldly unconstitutional for the federal government to screen the state governments. It would totally destroy the federalist system which has worked so effectively for 240 years now,” he said. 

Scheidler also said that a proposal for abortion built off of voting rights precedent doesn’t make sense. “I think this is a very different situation,” he said. “Whatever special consideration may have applied to voting rights don’t work here. There’s been a long history of robust litigation on abortion specifically.”

But idea could gain traction, as it has received support from some prominent women’s rights advocates. “I do think that the way that she has thought about this is very creative,” former vice president of public policy at Planned Parenthood, Laurie Rubiner, told The Daily Beast. “I really like that what she is saying is ‘we’re going to shift that burden to the state’ especially in places where they have a history of passing these unconstitutional laws.”