Statements on Introduced Bills and Joint Resolutions

Floor Speech

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Mr. KAINE. Mr. President, for nearly half a century, the Supreme Court held that the right to make reproductive decisions was protected by the 14th Amendment. Generations of women have relied on the freedom to make reproductive health decisions as a matter of fundamental personal rights. In particular, seminal cases such as Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, Whole Woman's Health v. Hellerstedt, Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International established basic rights to obtain abortion services and access contraception.

The Supreme Court's recent decision in Dobbs v. Jackson Women's Health overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, the landmark decisions holding that a woman's right to a pre-viability abortion is constitutionally protected. As the dissenters in Dobbs observed, this right is ``embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives.'' The Supreme Court's decision in Dobbs resulted in immediate abortion bans in several States and means that millions of women, particularly women who live in the South, parts of the Midwest, and the West, will live hundreds of miles from the nearest abortion clinic. In fact, approximately 17 million women could be forced to travel more than 200 miles in order to obtain abortion care.

Not only does the Supreme Court's decision in Dobbs upset decades of precedent protecting the right of Americans to make personal decisions about abortion, but it also places in jeopardy many other important 14th Amendment rights, including the right to access birth control. Because the Supreme Court has abandoned constitutional protection of reproductive rights, it is the responsibility of Congress to act.

That is why Senators Murkowski, Sinema, Collins, and I are introducing the Reproductive Freedom for All Act, bipartisan legislation to guarantee protections for reproductive and contraceptive care by enacting the essential holdings of the landmark cases Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, Whole Woman's Health v. Hellerstedt, Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International. The Reproductive Freedom for All Act returns Federal law to its pre-Dobbs status by allowing pre-viability abortions, prohibiting States from banning post- viability abortions necessary to protect the life and health of the mother, and protecting access to contraception. The Reproductive Freedom for All Act creates a minimum Federal standard which states must follow. The bill also ensures that the U.S. Department of Justice or individuals adversely affected by a State abortion restriction can challenge any State restriction on reproductive freedom in court.

The Supreme Court's overturning of Roe and Casey goes directly against the will of the people. More than 60 percent of Americans believe abortion should be legal in all or most cases. Support for reproductive freedom transcends regional, political, ethnic, and religious differences. Since support for reproductive freedom is nonpartisan among the public, it is important to have a legislative vehicle protecting that freedom that can gain bipartisan support.

I urge my colleagues to support the passage of the Reproductive Freedom for All Act. It is imperative that Congress come together to ensure that decisions as fundamental as reproductive choice are not determined by the State or ZIP Code where someone lives.

I thank my colleagues for standing together in support of a bipartisan solution to the crisis created by Dobbs. I also acknowledge the work of advocates supporting Michigan's Reproductive Freedom for All ballot initiative, which informed my work on this bill and which I hope will inspire similar efforts in other States. We must come together to pass the Reproductive Freedom for All Act now.

Mr. President, I rise to essentially do a part two of a talk that I gave on the Senate floor about 2 weeks ago. The first part of my talk was my analysis of the Dobbs decision of the Supreme Court, expressing my deep disillusionment with the Court's decision to cast aside a century of precedent under the 14th Amendment due process clause and, in particular, casting aside 50 years of using the 14th Amendment to protect women's rights to make reproductive decisions with regard to contraception and abortion.

I analyzed the Court's opinion and precedents at that time, but I sort of left it hanging what needs to be done because while we can critique the Court decision, and I do view it as completely ahistorical and not understanding the purpose of the 14th Amendment, nevertheless, the Court's majority ruling was the protection of reproductive freedom was now no longer a matter for constitutional protection but was, instead, for legislatures.

The majority seemed to assume that that would be State legislatures, but at least one of the concurring opinions acknowledged legislatures could include Congress.

And I take the floor today in the second part of this talk to discuss a bill that I have today introduced with three other Senate colleagues--Senator Sinema, Senator Collins, and Senator Murkowski--the Reproductive Freedom for All Act, taking the Supreme Court up on the challenge that what we need to do to protect reproductive freedom is to legislate to do so.

Let me describe the origin of the bill. Beginning in February, the Senate has had two votes on a bill that I have cosponsored--the Women's Health Protection Act, which was designed--written before the Dobbs case but designed to protect reproductive freedom by disabling State legislatures from putting schemes and obstacles in the way of women making reproductive decisions.

The first time we had a vote on that bill, I voted yes. It was in February. It received 49 votes. We were scheduled to have a second vote on the Women's Health Protection Act in May. And it occurred to me that we would likely have the same result; we would get 49 votes.

And I had a strong feeling before that vote that if that was the case, we would be leaving votes on the table. By that, I understood from talking to my colleagues that there were more than 49 Members of this Chamber who wanted to codify Roe and related cases and protect women's rights to access contraception and abortion services but that it wouldn't be ideal to send a message that less than a majority of the Senate was committed to reproductive freedom. And so I began efforts in May to find additional votes beyond the 49 that I knew would vote yes on the WHPA. And I began discussions with colleagues, including Republican colleagues, to look for a way to codify Roe that, yes, might be different in wording from the Women's Health Protection Act but would accomplish the same goal of providing a Federal guarantee that would operate in every ZIP Code in this country to protect women's rights to make decisions about contraception and abortion.

And today we have introduced that bill, the Reproductive Freedom for All Act. The name of it is a tribute to a ballot initiative that is currently under debate in Michigan and scheduled for a vote to be added to the Michigan Constitution in November, the Reproductive Freedom for All initiative. And the bill that we have put together fairly closely tracks--not identically but fairly closely tracks the language of the ballot referendum in Michigan.

What does the bill do? We worked on the bill between the leak of the Dobbs opinion and when Dobbs was decided by the Supreme Court right before our July Fourth recess. And we worked to make the bill as strong as we could. But then we set it aside because we knew the Dobbs decision might change from the leaked opinion, and we wanted to see what was actually in the opinion before we finalized the bill. And it is good that we waited because there were some aspects of the Dobbs opinion that were a bit different. They took some sandpaper to some controversial parts of the case, and they extended other arguments in the case that needed a response.

And so what we have done since Dobbs is analyzed the opinion but also, more importantly, looked at life in the United States since that decision was rendered. I could give many examples, even in the month since that decision has been rendered, of the tragedy of what I believe is now post-Dobbs America.

In particular, when a 10-year-old child has to be smuggled across State lines to receive care following her rape, that is gruesome. That is not what this country should expect, nor, indeed, what we should tolerate. And yet that is not an accidental byproduct of the Dobbs decision. That was a completely foreseeable and even foreseen consequence of the Dobbs decision that turning it over to 50 States would lead to a patchwork of horrible examples one after the next.

I have spoken about another example in Virginia. An individual who was living in Kentucky got a breast cancer diagnosis on the day the Dobbs opinion was leaked, went to her doctor and found out that her contraception could potentially cause accelerated growth of cancer cells. And so she needed to come off contraception to get cancer treatment. She has two young children. She is worrying about her own cancer. She is trying to keep herself healthy for herself but also for her young children. If she were to come off contraception, there would be the chance of an unwanted pregnancy. The cancer treatments also would significantly degrade the possibility for a healthy pregnancy, but she was now living in a State that, post-Dobbs, would not allow her to have an abortion.

She wrote a piece about this in NBC News. She was fortunate enough to be able to move and get a new job in Virginia, where she would be able to make these choices, but these are the kinds of choices, post-Dobbs, people have to make every day: Do we smuggle a youngster across State lines or does someone move from one State to the next? Every person in this country, no matter what ZIP Code they live in, should have a basic Federal guarantee about contraception and availability of abortion services.

What the Reproductive Freedom for All Act would do would be, essentially--we tried to put ourselves in a time machine after Dobbs and travel back to the day before the Dobbs decision. It was a very narrow focus. You can look at this in other ways. Some folks didn't like what the law was the day before the Dobbs decision. But in order to find some bipartisanship--because, truly, the American public, on a bipartisan basis, wants to preserve reproductive rights--we looked at could we come up with a Federal statutory guarantee that would match the state of constitutional law that existed the day before the Dobbs decision and protect the rights of all to contraception access and also protect the rights of all to abortion access as it existed before Dobbs.

Simply put, that is this; that prior to fetal viability, no State can pass any statute regulating abortion that imposes an undue burden on a woman seeking to exercise that right. And post-viability, while a State can more significantly regulate abortion, no State can deprive any woman of the right to receive an abortion should she and her health providers determine that it is necessary to protect her life or health.

That is the bill that I have introduced today with Senators Collins, Murkowski, and Sinema. I thank them for working to try to show--because now we have shown that there is not a minority of the U.S. Senate, but there is actually a majority that wants to codify Roe and related cases; that we might have some differences of opinion about the right language to use to do that, but there is a difference between a Senate where that is only a minority sentiment and a Senate where, like in the rest of the American public, that is a majority sentiment.

The last thing I will say is this. I am very well aware, as are my cosponsors in introducing that bill, that we do not have the votes today, should it be put up, to get 60 votes in the Senate for it. We don't. Yet I am given some inspiration by the fact that we recently passed a gun safety bill where 2 months before there were not 60 votes either. In fact, for the 10 years I have been in the Senate, we have been trying to pass legislation in this Chamber to deal with the scourge of gun violence and again and again and again have fallen short of 60 votes even to proceed to legislation. But in the aftermath of tragedies in Buffalo and Texas, a decision was made by the Members of this deliberative body that inaction was no longer an option and resolute action to protect people's rights and safety was a mandate.

I believe the Dobbs decision and what we have seen since is a catastrophe that, as it plays out over time in State after State, will also change the dynamic in the article I branch and demonstrate the need for a national protection for reproductive rights rather than a 50-State free-for-all in a race to the bottom.

It is in that spirit my colleagues and I have introduced this bipartisan bill today demonstrating that there is now bipartisan support and majority support in the U.S. Senate to protect reproductive freedom for all.

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