When the US Supreme Court overturned a half-century precedent assuring that abortion was a Constitutional right, reproductive freedom quickly became a crucial issue in state election contests — such as Pennsylvania’s gubernatorial race between Democrat Josh Shapiro and Republican Doug Mastriano. The majority opinion overturning Roe. V. Wade, written by Justice Samuel A. Alito Jr., turned back the clock to a time when abortion laws were determined by state officials.
But the ruling in Dobbs v. Jackson Women's Health Organization has emboldened abortion foes to consider tactics that seemed remote possibilities only a few years ago. Among the initiatives to receive a boost last month was a federal abortion ban proposed by western Pennsylvania Congressman Mike Kelly.
Kelly’s “Heartbeat Protection Act” would essentially ban abortion after the sixth week of pregnancy — a time by which a pregnancy may not even have been detected. The bill would not penalize the person seeking the abortion, but anyone performing it could face fines and up to five years in prison. Abortions deemed necessary to protect the physical health or life of the parent would still be legal, but the bill provides no exception for pregnancies arising from rape or incest.
The bill takes its name from the conceit that a fetal heartbeat is detectable at about six weeks of development: “A beating heart is the clearest sign of life,” Kelly said in announcing the bill. Critics say the term is a misnomer because organs like the heart have not developed by that point.
Kelly first sponsored the bill more than a year ago, but since a draft version of Alito’s decision was leaked in early May, 59 House members have signed on as cosponsors to the bill. That more than doubled the number of backers it had garnered during the previous 15 months.
“We see that as a major step forward toward this legislation gaining the momentum needed to pass the House of Representatives and … that means protecting the unborn and most vulnerable among us,” Kelly's office said in a written response to queries from WESA.
The statement noted that the bill also has been adopted by the Republican Study Committee as part of its legislative agenda. The committee, whose 160 members include such conservative firebrands as Marjorie Taylor Greene and Paul Gosar, says Republican leaders should “bring this bill to the floor for a vote by the whole House next year when Republicans return to the majority.”
Political oddsmakers say Republicans have a very strong chance of recapturing this House this November, and perhaps the Senate as well. But that doesn’t mean Republican office-seekers are necessarily anxious to publicly endorse the measure today.
The campaign of Republican Jeremy Shaffer, who is running against Democrat Chris Deluzio to replace Conor Lamb in Pennsylvania’s 17th Congressional District, did not respond to a query about Shaffer's position on Kelly’s bill last week. During a debate during the Republican primary, however, he said he preferred to have states decide the matter unless a federal ban could be enshrined as a Constitutional amendment, for fear a federal bill would be unraveled by a future Democratic majority.
The campaign of Republican Senate candidate Dr. Mehmet Oz, meanwhile, did not respond to a query about whether he would support the bill should it come before the Senate.
There is little doubt about where the men stand on abortion overall: Both were endorsed last week by Susan B. Anthony Pro-Life America, which is among the country’s largest abortion foes. But Republican challengers and incumbents not holding seats as safe as Kelly’s have generally treated the topic gingerly since Alito’s decision was handed down.
In any case, it is all but impossible to imagine such a bill becoming law with a Democrat in the White House. But the surge in support for Kelly’s bill reflects how quickly the politics of abortion have changed, at least on the right.
Decades of polling have shown that a vast majority of Americans think abortion should be legal for pregnancies that result from rape or incest. A June 2021 Associated Press poll, for example, showed that 84 percent of Americans — and nearly three-quarters of Republicans — believe abortion should be legal under those circumstances.
Kelly’s statement did not address a question about whether banning abortion in such cases would inflict more hardship on a victim of such assaults.
Kelly’s bill departs from tradition in another way: For the past half-century, calls to overturn Roe v. Wade typically have been paired with the argument that “the states should decide” on abortion policy within their borders. But at least in some Republican circles, that consensus appears to be eroding.
It is not clear what impact Kelly’s bill would have on state-level efforts to restrict abortion, some of which go even further than his legislation. Pennsylvania Republicans, including gubernatorial candidate Mastriano, have backed a statewide abortion ban that — unlike Kelly’s ban — doesn’t include exceptions for pregnancies that pose a threat to life or health.
Kelly’s bill doesn’t explicitly prohibit states from adopting more restrictive measures, and his office did not directly respond to a query on what impact it would have on state bills.
“As each state considers their own legislation right now, Rep. Kelly feels this is the best path forward for legislation at the federal level,” the statement said.
Duquesne University law professor Bruce Ledewitz said, “It’s often a judgment call” when courts decide if a federal law supersedes state action. The outcome can rely on not just the bill’s terms but its tone, or a determination that Congress drafted rules after conducting a balancing test that states shouldn’t try to recalibrate for themselves.
“The courts could say, ‘This bill balanced all the interests, and it shouldn’t be changed either way,'" he said.
In the short term, Democratic candidates are hoping that the Dobbs decision and the Republican reaction to it inspire voters to look beyond issues such as inflation that so far have defined much of the year’s political rhetoric. Democratic congressional candidate Dan Pastore, who is challenging Kelly in an uphill fight this fall, says he saw a spike in fundraising for his campaign.
“It’s really made many people more concerned about the direction we’re going, and that has spurred greater interest in my candidacy,” he said.
Pastore and Kelly are competing in a district that once was represented by Tom Ridge, who as a Congressman and governor was one of a dwindling number of Republicans who favored abortion rights.
“I don’t think the district has changed significantly” since Ridge represented it, Pastore said. “I think the Republican position has become more extreme.”
