Facing Current Conditions: Employing Voting Rights Act Preclearance to Protect Reproductive Rights

Abstract

Since the Supreme Court’s decision in Roe v. Wade in 1973, many states have passed various anti-abortion legislation that will likely curtail American women’s right to receive abortion care. In response to this effort, some have posited federal legislation creating a preclearance requirement imposed on states with a history of restricting access to the right to undergo an abortion procedure. The blueprint for this legislation comes from the VRA. Sections 4(b) and 5 of the VRA as originally enacted required that jurisdictions with a history of restricting the right to vote to preclear with the Department of Justice any changes in their laws affecting the right to vote. To withstand constitutional challenge, a preclearance plan to protect the right to undergo abortion procedures must be responsive to the current conditions of abortion care access and abortion-related services, as is suggested by the Supreme Court’s criticisms of the VRA in Shelby County v. Holder. Therefore, the abortion protection legislation must limit its scope only to states who have committed demonstrable violations of the right. This note recommends such legislation. To do this, the note provides a history of reproductive rights jurisprudence since Roe v. Wade and introduces the current threat to those rights posed by anti-abortion legislation. Next the note explores the parallels between the right to vote and the right to an abortion procedure that make preclearance legislation appropriate. The note then proposes legislation that will comply with Shelby County. The note concludes with the ramifications associated with successful enactment of the proposed legislation.