By Emily Cadei, McClatchy Washington Bureau
WASHINGTON — As she fights for traction in the Democratic presidential primary, Sen. Kamala Harris is doubling down on her promises to fight for women’s reproductive rights, rolling out a new plan to hit back at states like Alabama, Georgia and Missouri that have moved to enact near-total bans on abortion.
Harris, a 2020 presidential candidate from California, is set to announce at a town hall in South Carolina that, as president, her administration would review and preempt any state or local law that restricts women’s access to abortion, if the state has a history of violating Roe v. Wade, the 1973 Supreme Court decision that enshrined a woman’s right to terminate a pregnancy.
The proposal is modeled after the 1965 Voting Rights Act, which established a “preclearance” requirement for any changes to voting or election laws in states that had a history of discrimination. In those states, the Department of Justice had to review and approve the proposed changes before they were enacted.
The Supreme Court, however, overturned that requirement in the controversial 2013 Shelby County v. Holder decision, ruling that the formula for determining the states eligible for preclearance was outdated. The court urged lawmakers to update the Voting Rights Act with a new formula, but a divided Congress has yet to act.
The Harris campaign argues its abortion law preclearance requirement would abide by the court’s 2013 ruling by establishing an up-to-date formula. States would face the added layer of federal review if they had a pattern of violating Roe v. Wade in the preceding 25 years, as determined by legal settlements or court rulings that a law or practice violated Roe.
States like South Carolina, Georgia, Iowa and Texas would all fall under that category, having passed abortion laws in recent years that were later overturned in federal court. Alabama’s new law, which threatens a life sentence for doctors performing abortion, with few exceptions, and Missouri’s ban on abortions after 8 weeks, already face lawsuits.
They’ve also been roundly criticized by the teeming field of Democratic presidential candidates, who are jostling to court women voters, a key voting bloc in the party’s primary. New York Sen. Kirsten Gillibrand held a rally at the Georgia state Capitol earlier this month to protest a new state law banning abortion once a fetal heartbeat has been detected. And a number of candidates spoke on the steps of the Supreme Court last week as part of a protest against the recent spate of restrictive state abortion laws.
Laurie Rubiner, the former vice president of public policy at Planned Parenthood, credited Harris for her proactive response. “It could really be a game changer,” said Rubiner, who has been briefed on Harris’ proposal.
The senator plans to discuss her plan publicly at a town hall in Spartanburg, S.C., which is to air live on MNSBC Tuesday night.
“It is incredibly time consuming and costly to challenge all of these laws all over the country,” said Rubiner. “Why should we have to do that, especially when we know that the law is unconstitutional or borders on unconstitutional?”
But such a move in a Harris administration would likely to face legal challenges of its own.
Rubiner said she believed the Department of Justice could legally establish the preclearance requirement unilaterally, without action from Congress. And she argued that, for abortion rights advocates, it represents one of the few ways they can fight back against the anti-abortion movement’s years-long legal effort to chip away at abortion access.
“We’ve become such a polarized country,” she said, particularly on issues of reproductive rights. “It’s very difficult to get anything passed in this Congress, so if that’s the way it has to be done then I’ll take what we can get.”