Protecting Women’s Reproductive Rights—An Examination of Preclearance Provisions Under the Reproductive Rights Act
December 4, 2019
In 2019, several states, including Alabama, Georgia, Kentucky, Louisiana, Mississippi, Missouri and Ohio, passed strict laws limiting access to abortion. Some state laws specifically aim to overturn the seminal case, Roe v. Wade. Roe protects the right to an abortion before fetal viability, a holding reaffirmed by the Supreme Court in Planned Parenthood v. Casey, which also applied the undue burden test.
The recently proposed Reproductive Rights Act (RRA) would require states with a history of restricting access to abortion to preclear any new abortion law with the Department of Justice (DOJ) before such law or practice can take effect.
The RRA is modeled after the Voting Rights Act (VRA), which required federal preclearance of state voting laws from 1965 to 2013 for states with a history of chronic racial discrimination in voting procedures. The VRA established a “coverage formula” that set forth specific criteria, such as whether a state had implemented a test to restrict voting and had low voter turnout, to determine which states were subject to the federal preclearance requirement. Those states were prohibited from making changes to their voting procedures without federal approval by DOJ or the U.S. District Court (D.C.).
Similarly, the RRA would subject states with a history of unconstitutionally restricting access to abortion to a federal preclearance requirement. States would be required to prove any legislative changes comport with Roe v. Wade and the Women’s Health Protection Act (a proposed federal bill). The RRA would seek to stop state laws that violate Roe’s essential holding and create an undue burden on women seeking an abortion.
The RRA’s preclearance requirement, like that of the VRA, may be legally challenged. In 2013, the Supreme Court in Shelby County v. Holder struck down the VRA’s coverage formula. The Court emphasized the VRA’s departure from fundamental principles of federalism and states’ equal sovereignty. The Court held that the Constitution creates a fundamental principle of equal sovereignty among the states and any departure from this principle can only be justified by current needs. According to the Court, the coverage formula was based on outdated data, on racial disparities in voting, and eradicated practices like literacy tests. Therefore, the disparate geographic coverage formula imposed by the VRA was no longer justified.
To the extent that the RRA’s coverage requirement would also apply unequally to states, it may also be found unconstitutional. What it means to be a “state with a history of unconstitutionally restricting access to abortion” under the RRA’s coverage requirement is unclear and potentially arbitrary.
While the Court in Shelby County did not decide the constitutionality of the VRA’s federal preclearance practice, Chief Justice John Roberts described the VRA’s preclearance as an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” A strong defense of states’ rights may inhibit federal preclearance laws. Consequently, although the RRA may seem like a practical solution for protecting women’s reproductive rights, it may not survive future constitutional scrutiny.
This blog was developed by Emily Carey, Legal Researcher, Network for Public Health Law – Western Region and J.D. Candidate, ASU Law (2021), and reviewed by April Shaw, J.D., Ph.D., Staff Attorney, Network for Public Health Law – Western Region at the Sandra Day O’Connor College of Law, Arizona State University (ASU), and Research Scholar, Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, Arizona State University (ASU).
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.