[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 28 Introduced in House (IH)]
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118th CONGRESS
1st Session
H. RES. 28
Condemning the Supreme Court's decision to overturn Roe v. Wade and
Planned Parenthood v. Casey and committing to advancing reproductive
justice and judicial reform.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 11, 2023
Mr. Espaillat (for himself, Mr. Payne, Ms. Clarke of New York, Ms.
Velazquez, Ms. Norton, Mr. Moulton, Mr. Evans, Mr. Garcia of Illinois,
Ms. Williams of Georgia, Mr. Mullin, Mr. Connolly, Ms. DelBene, Mr.
Cleaver, Ms. Barragan, Mr. Thanedar, Ms. Schakowsky, Ms. Bonamici, Ms.
Meng, Ms. Tlaib, Mr. Davis of Illinois, Mr. Higgins of New York, Mr.
Gottheimer, Ms. Jayapal, Ms. Stevens, Ms. Tokuda, Mr. Carson, Ms. Chu,
Mr. Krishnamoorthi, Mr. Trone, Ms. Titus, Mr. DeSaulnier, Mr. Bowman,
Mr. Blumenauer, Ms. Lofgren, Mrs. Hayes, and Mrs. Cherfilus-McCormick)
submitted the following resolution; which was referred to the Committee
on the Judiciary, and in addition to the Committee on Energy and
Commerce, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the
jurisdiction of the committee concerned
_______________________________________________________________________
RESOLUTION
Condemning the Supreme Court's decision to overturn Roe v. Wade and
Planned Parenthood v. Casey and committing to advancing reproductive
justice and judicial reform.
Whereas, in Planned Parenthood v. Casey, the Supreme Court held that--
(1) ``Overruling Roe's central holding would not only reach an
unjustifiable result under stare decisis principles, but would seriously
weaken the Court's capacity to exercise the judicial power and to function
as the Supreme Court of a Nation dedicated to the rule of law'';
(2) ``Roe determined that a woman's decision to terminate her pregnancy
is a `liberty' protected against State interference by the substantive
component of the Due Process Clause of the Fourteenth Amendment. Neither
the Bill of Rights nor the specific practices of States at the time of the
Fourteenth Amendment's adoption marks the outer limits of the substantive
sphere of such `liberty'. Rather, the adjudication of substantive due
process claims may require this Court to exercise its reasoned judgment in
determining the boundaries between the individual's liberty and the demands
of organized society''; and
(3) ``The ability of women to participate equally in the economic and
social life of the Nation has been facilitated by their ability to control
their reproductive lives. The Constitution serves human values, and while
the effect of reliance on Roe cannot be exactly measured, neither can the
certain costs of overruling Roe for people who have ordered their thinking
and living around that case be dismissed'';
Whereas it is tempting ``to suppose that the Due Process Clause protects only
those practices, defined at the most specific level, that were protected
against government interference by other rules of law when the
Fourteenth Amendment was ratified . . . But such a view would be
inconsistent with our law. It is a promise of the Constitution that
there is a realm of personal liberty which the government may not enter.
We have vindicated this principle before. Marriage is mentioned nowhere
in the Bill of Rights and interracial marriage was illegal in most
States in the 19th century, but the Court was no doubt correct in
finding it to be an aspect of liberty protected against State
interference by the substantive component of the Due Process Clause in
Loving v. Virginia'';
Whereas, in Dobbs v. Jackson Women's Health Organization, the Supreme Court
presided over a challenge to a 2018 Mississippi law that bans virtually
all abortions after the 15th week of pregnancy;
Whereas, during oral arguments in Dobbs v. Jackson Women's Health Organization,
Justice Sonia Sotomayor, poignantly and correctly stated, ``Will this
institution [the Supreme Court] survive the stench that this creates in
the public perception that the constitution and its reading are just
political acts?'' ``I don't see how it is possible'';
Whereas, on June 24, 2022, the Supreme Court issued its holding in Dobbs v.
Jackson Women's Health Organization by holding that--
(1) ``the Constitution does not confer a right to abortion; Roe and
Casey are overruled; and the authority to regulate abortion is returned to
the people and their elected representatives'';
(2) a restrictive standard applies for substantive due process rights
under the United States Constitution by only recognizing rights ``deeply
rooted in [our] history and tradition'' and ``implicit in the concept of
ordered liberty''; and
(3) a State's regulation of abortion is not a sex-based classification
and is thus not subject to the ``heightened scrutiny'' that applies to such
classifications;
Whereas Justice Clarence Thomas's concurring opinion in Dobbs v. Jackson Women's
Health Organization urges the Supreme Court to ``reconsider all . . .
substantive due process precedents, including Griswold, Lawrence, and
Obergefell. Because any substantive due process decision is demonstrably
erroneous'';
Whereas Justice Breyer, Justice Sotomayor, and Justice Kagan issued a dissenting
opinion in Dobbs v. Jackson Women's Health Organization, stating--
(1) for half a century, Roe v. Wade and Planned Parenthood of
Southeastern Pa. v. Casey, have protected the liberty and equality of
women;
(2) ``Roe held, and Casey reaffirmed, that the Constitution safeguards
a woman's right to decide for herself whether to bear a child'';
(3) ``The government could not control a woman's body or the course of
a woman's life: It could not determine what the woman's future would be'';
(4) ``Respecting a woman as an autonomous being, and granting her full
equality, meant giving her substantial choice over this most personal and
most consequential of all life decisions'';
(5) the Supreme Court's majority today, ``says that from the very
moment of fertilization, a woman has no rights to speak of. A State can
force her to bring a pregnancy to term, even at the steepest personal and
familial costs. An abortion restriction, the majority holds, is permissible
whenever rational, the lowest level of scrutiny known to the law. And
because, as the Court has often stated, protecting fetal life is rational,
States will feel free to enact all manner of restrictions'';
(6) ``The Mississippi law at issue here bars abortions after the 15th
week of pregnancy. Under the majority's ruling, though, another State's law
could do so after ten weeks, or five or three or one--or, again, from the
moment of fertilization'';
(7) ``Some States have enacted laws extending to all forms of abortion
procedure, including taking medication in one's own home. They have passed
laws without any exceptions for when the woman is the victim of rape or
incest. Under those laws, a woman will have to bear her rapist's child or a
young girl her father's--no matter if doing so will destroy her life. So
too, after today's ruling, some States may compel women to carry to term a
fetus with severe physical anomalies . . . States may even argue that a
prohibition on abortion need make no provision for protecting a woman from
risk of death or physical harm. Across a vast array of circumstances, a
State will be able to impose its moral choice on a woman and coerce her to
give birth to a child'';
(8) ``A State can of course impose criminal penalties on abortion
providers, including lengthy prison sentences. But some States will not
stop there. Perhaps, in the wake of today's decision, a State law will
criminalize the woman's conduct too, incarcerating or fining her for daring
to seek or obtain an abortion. And as Texas has recently shown, a State can
turn neighbor against neighbor, enlisting fellow citizens in the effort to
root out anyone who tries to get an abortion, or to assist another in doing
so'';
(9) ``After this decision, some States may block women from traveling
out of State to obtain abortions, or even from receiving abortion
medications from out of State. Some may criminalize efforts, including the
provision of information or funding, to help women gain access to other
States' abortion services'';
(10) ``Most threatening of all, no language in today's decision stops
the Federal Government from prohibiting abortions nationwide, once again
from the moment of conception and without exceptions for rape or incest'';
(11) ``Whatever the exact scope of the coming laws, one result of
today's decision is certain: the curtailment of women's rights, and of
their status as free and equal citizens'';
(12) ``According to the majority, no liberty interest is present--
because (and only because) the law offered no protection to the woman's
choice in the 19th century. But here is the rub. The law also did not then
(and would not for ages) protect a wealth of other things. It did not
protect the rights recognized in Lawrence and Obergefell to same-sex
intimacy and marriage. It did not protect the right recognized in Loving to
marry across racial lines. It did not protect the right recognized in
Griswold to contraceptive use. For that matter, it did not protect the
right recognized in Skinner v. Oklahoma ex rel. Williamson . . . not to be
sterilized without consent. So if the majority is right in its legal
analysis, all those decisions were wrong, and all those matters properly
belong to the States too--whatever the particular State interests involved.
And if that is true, it is impossible to understand (as a matter of logic
and principle) how the majority can say that its opinion today does not
threaten--does not even `undermine'--any number of other constitutional
rights'';
(13) ``Today's decision, taken on its own, is catastrophic enough. As a
matter of constitutional method, the majority's commitment to replicate in
2022 every view about the meaning of liberty held in 1868 has precious
little to recommend it. Our law in this constitutional sphere, as in most,
has for decades upon decades proceeded differently. It has considered
fundamental constitutional principles, the whole course of the Nation's
history and traditions, and the step-by-step evolution of the Court's
precedents. It is disciplined but not static. It relies on accumulated
judgments, not just the sentiments of one long-ago generation of men (who
themselves believed, and drafted the Constitution to reflect, that the
world progresses). And by doing so, it includes those excluded from that
olden conversation, rather than perpetuating its bounds'';
(14) ``The legitimacy of the Court is earned over time . . . it can be
destroyed much more quickly'';
(15) ``The American public . . . should never conclude that its
constitutional protections hung by a thread--that a new majority, adhering
to a new `doctrinal school', could `by dint of numbers' alone expunge their
rights . . . It is hard--no, it is impossible--to conclude that anything
else has happened here''; and
(16) ``With sorrow--for this Court, but more, for the many millions of
American women who have today lost a fundamental constitutional
protection--we dissent'';
Whereas the Supreme Court's holding in Dobbs v. Jackson Women's Health
Organization places other fundamental human rights, such as the right to
contraception, interracial marriage, and same-sex marriage at risk;
Whereas the Supreme Court's holding in Dobbs v. Jackson Women's Health
Organization strips millions of women of their status as free and equal
members of society, and has a corrosive impact on society, for example--
(1) according to the World Health Organization, lack of access to safe,
affordable, timely and respectful abortion care, and the stigma associated
with abortion, pose risks to women's physical and mental well-being
throughout their life;
(2) approximately 64,000,000 women and girls of reproductive age live
in the United States, and more than half of them live in States that could
seek to ban or further restrict access to abortion now that the Supreme
Court overturned Roe and Casey;
(3) everyone risks losing access to abortion in 28 States, but those
who are more likely to get the procedure include women of color, in part
because of unequal access to opportunities like health care, jobs,
education, and housing;
(4) undocumented women will be disproportionately impacted by
restrictions on abortions as they will not be able to travel to seek
abortion services;
(5) women living in poverty or on lower incomes will be
disproportionately impacted by restrictions on abortions, as most women
getting abortions are living in poverty;
(6) transgender and gender non-binary (TGNB) individuals will be
impacted, as the Guttmacher Institute found that approximately 500 TGNB
individuals obtained abortions in 2017;
(7) medication abortion accounted for 54 percent of all United States
abortions in 2020, an increase from 39 percent in 2017, according to the
Guttmacher Institute;
(8) 19 States prohibit pills from being prescribed by telemedicine or
delivered through the mail, and 9 additional States are proposing to do the
same;
(9) the American College of Obstetricians and Gynecologists estimates
that miscarriage is the most common form of pregnancy loss, as many as 26
percent of all pregnancies end in miscarriage and according to reports,
miscarriages and abortions are often clinically indistinguishable; and
(10) reports find that medical providers who treat pregnancy-related
issues, including miscarriages, fear performing any procedure that can be
classified as an abortion--even while the procedures remain legal, risking
being prosecuted, having their licenses revoked, or being thrown in jail;
and
Whereas, on June 23, 2022, Gallup found that public confidence in the Supreme
Court has sunk to a historic low of 25 percent: Now, therefore, be it
Resolved, That the House of Representatives--
(1) condemns the restless and newly constituted Supreme
Court's holding in Dobbs v. Jackson Women's Health
Organization;
(2) commits to utilizing constitutional authorities
provided to Congress under Article III of the Constitution to
enact judicial reform, helping reassure public confidence in
the Supreme Court so that it is not viewed as a partisan
institution;
(3) commits to ensuring that Federal law advances
reproductive justice, recognizing that access to abortion
constitutes access to health care as a fundamental liberty of
all human beings;
(4) commits to protecting communities that will be
disproportionately impacted by the holding in Dobbs v. Jackson
Women's Health Organization, including women of color,
undocumented women, women living in poverty, LGBTQIA+
individuals, gender nonconforming individuals, and individuals
with disabilities; and
(5) urges the executive branch to utilize constitutional
authorities and a whole-of-government approach to advance
reproductive justice.
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