Elizabeth Warren says abortion access should be a federal law. What does that mean?

Of course she does.
Of course she does.
Image: AP Photo/Wilfredo Lee
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Abortion has been a hot topic in America in the past few months, and so it wasn’t surprising when it came up on the democratic primary debate’s first night.

What was a surprise was the position of Massachusetts senator Elizabeth Warren.

Though candidates in the past have often tiptoed around the topic, it was not the case this time. The 10 candidates on stage tonight all expressed support for the women’s rights to choose, and some vehemently so.

Julián Castro passionately stated: “I don’t believe only in reproductive freedom, I believe in reproductive justice.” And Washington Gov. Jay Inslee said he was the “only candidate here who had passed a law protecting a woman’s right to reproductive health and health insurance.” This prompted Minnesota senator Amy Klobuchar to push back on the male appropriation of the fight for women’s rights: “I just want to say there are three women up here who have fought pretty hard for a woman’s right to choose.”

Warren, however, when answering the question of whether she would put limits to access to abortion, didn’t just say she wouldn’t—she introduced an idea that would put an end to the discrepancies between states when it comes to access to reproductive health.

“It’s not enough for us to expect the courts to protect us,” she said, “We now have an America where most people support Roe v. Wade. We need to make that a federal law.”

Having access to abortion guaranteed by federal law would significantly change the landscape when it comes to reproductive rights across America.

At the moment, as the Supreme Court established with Roe v Wade and following judgements, the law of the land says women have the right to access abortion, established as a protection of their privacy over their body. States can make their own regulations on abortion, however, as long as the woman doesn’t face an “undue burden” to accessing abortion services. States can also outlaw abortions once the fetus has reached viability (that is, the ability to survive outside the womb).

But viability and burden are somewhat vague concepts and can be interpreted in restrictive or lax ways depending on the lawmaker’s intent. They open the door to the debates Americans have been witnessing for decades. This is why some states, for instance, have rules mandating waiting periods after abortion consultations, while others consider them undue burdens. Or why abortion is banned after 20 weeks in some parts of the country, and it isn’t elsewhere.

A federal law mandating the right to abortion would level the field, and put an end to the legal wrangling once and for all. It would mandate at least a minimum of rights to be guaranteed—something that would protect the right to abortion, especially should the Supreme Court end up overturning or limiting Roe v Wade. A federal law could also put an end to the Hyde amendment, which bans federal funds from being used to provide abortions, which Warren has also criticized for fostering inequality. States would still be able to make their additional laws on abortion, but they wouldn’t be able to impose limitations that aren’t allowed under the federal law.