In this era of peril for reproductive rights on the Supreme Court and of states itching for an opportunity to re-criminalize abortion, there are growing signs that progressives are getting more aggressive. Pro-choice advocates are becoming less defensive about the morality of abortion. In states where Democrats have the power to do so, they are pushing for laws that will protect abortion rights even if Roe is reversed. Indeed, one 2020 presidential candidate, Elizabeth Warren, has offered preemptive federal legislation that would maintain reproductive rights as a statutory matter if their constitutional status is removed by SCOTUS.
Another candidate, however, wins the prize for the most aggressive approach on record: Kamala Harris is proposing federal laws that would force states with a reactionary record on reproductive rights to secure a “preclearance” from the Justice Department before abortion restrictions that they enact can go into effect. Here’s a description from the Los Angeles Times:
Her proposal would give the Department of Justice final say over abortion laws passed by states or localities that have enacted unconstitutional abortion restrictions in the past 25 years.
The policy is modeled on the 1965 Voting Rights Act, which said that jurisdictions with a history of discrimination must get preapproval from the attorney general to make any changes to voting laws that could affect minorities …
Harris would mirror that approach for abortion rights, which would require a new law passed by Congress in order to give the Department of Justice that authority.
For over half a century, the VRA preclearance requirement was an effective tool, under both Democratic and Republican administrations, for deterring voter suppression in the former Confederate states. It is still technically in force, though the Supreme Court made it moot in the notorious Shelby County v. Holder decision in 2013 that killed the formula used to identify the jurisdictions subject to the requirement. Lack of Republican interest in reviving the VRA has stymied any repair of the system.
Republican hostility is likewise an obstacle to Harris’s scheme. But it’s conceivable that, in the wake of a Democratic presidential and congressional win of the magnitude the party achieved in 2008 (or even a win falling short of that, if a Democratic Senate outlawed filibusters), it could be enacted. And pressure to do just that would be enhanced by the anticipated steps today’s SCOTUS is expected to take to pare back or reverse Roe. In effect, preclearances would take the place of lower-court judicial orders in beating back state laws that violate a nationally established right to choose. And the burden would be placed squarely on states to justify any new abortion laws, as Politico notes:
The current situation puts the onus on abortion rights advocates to sue to block state restrictions one by one. Under Harris’ plan, the onus would instead be on states to prove to the Justice Department that each new law does not violate the standards set by Roe and the Women’s Health Protection Act [Harris’ proposal for federal preemptive pro-choice legislation supplementing and if necessary replacing Roe].
And as Vox explains, Harris’s system for determining the states subject to the preclearance requirement wouldn’t involve the kind of quickly-out-of-date numerical indicators that got the VRA into trouble:
A congressional formula would decide which reproductive health laws counted as violations based on court settlements or decisions that found a state’s law directly contradicts the 1973 landmark Supreme Court decision, which established a woman’s constitutional right to abortion.
In states like South Carolina, Iowa, Georgia, and Mississippi, federal judges have already ruled that laws approved by state legislatures contradict Roe. Such decisions would land these states on a “preclearance” list.
Reproductive-rights groups praised Harris for the audacity of this proposal, and if nothing else, it’s a tonic for the troops in the midst of a battle to stop a GOP-led counterrevolution. And it doesn’t hurt that it borrows a page from the civil-rights and voting-rights movements and the proud constituencies they command.