Murphy calls on Congress to enact law to protect abortion rights

LAMBERTVILLE, N.J. — Gov. Phil Murphy and Rep. Tom Malinowski (D-N.J.) on Tuesday stressed the need for Democrats to maintain control of Congress in the midterm elections in order to uphold abortion rights, as Murphy assailed a "right-wing" Supreme Court that appears poised to overturn Roe V. Wade.

The comments from the two Democrats came in reaction to POLITICO's publication Monday night of a draft opinion that indicated the high court's intention.

Murphy called for Congress to pass a nationwide abortion rights law and for the Senate to “reform” the filibuster if need be.

“If this Congress won’t protect reproductive freedom, America needs to elect a Congress in November, including Tom Malinowski, that will,” Murphy said at the beginning of an unrelated press conference in Lambertville about flood control that included the congressman.

Malinowski faces an uphill fight for reelection in November, likely against former state Sen. Tom Kean Jr. (R-Union), who supports abortion rights with restrictions but voted against New Jersey’s recent abortion rights law. Democrats have been widely expected to at least lose their slim majority in the House.

New Jersey enshrined abortion rights into state law during the lame duck session, with Murphy signing the Freedom of Reproductive Choice Act into law in January. The state already has established case law protecting abortion rights.

“I also want to issue a warning that our law is not necessarily safe,” Malinowski said. “Yes, the Supreme Court decision will not overturn New Jersey’s law, but the same people who have been pressing for the Supreme Court to do this are also at the same time pushing for the United States Congress, trying to elect a majority to the United States Congress that will enact a nationwide abortion ban. And if we allow them to do that, our law will become moot.”

The Freedom of Reproductive Choice Act was pared down from a previous bill, the Reproductive Freedom Act, that included insurance mandates for abortions, with no out-of-pocket costs, among other measures.

It is unclear what steps, if any, New Jersey's Democrat-controlled Legislature will take to expand abortion access ahead of a potential Supreme Court ruling. Assembly Speaker Craig Coughlin said in a statement that “we will keep working to maintain confidence in a woman’s right to safe and accessible reproductive healthcare.” A spokesperson for Senate President Nick Scutari did not immediately respond to a request for comment.

Murphy, in remarks after Tuesday's press conference, was noncommittal on new legislation.

“Are there steps we can take in New Jersey? I’m open-minded. But I think the big action has to be taken in Congress,” Murphy said.

While the anticipation of a Supreme Court ruling overturning Roe could gin up support for Democrats in Trenton to act on abortion legislation, it could face obstacles. Insurance provisions in the Reproductive Freedom Act had been met with resistance. The compromise legislation that largely codified existing case law had six Democrats in the Assembly abstaining or not voting for the bill and state Sen. Fred Madden (D-Gloucester) voting against it in the upper chamber. With a loss of seven seats in the legislature after the 2021 election, Democrats have less room to lose votes.

No determinations have been made by lawmakers to one again begin debate on abortion access measures, though some involved in abortion legislation efforts wanted to revisit provisions that were excluded in the final compromise bill.

“I think insurance mandates, making sure insurance coverage is there [for abortion] is important. I think we should look at the other pieces that were taken out in the compromise [legislation] … Protecting a woman’s right to choose has never been a Democratic or Republican issue,” state Sen. Vin Gopal (D-Monmouth), who sponsored the Reproductive Freedom Act and the ensuing compromise Freedom of Reproductive Choice Act, said in an interview. “I am 100 percent [on board] that we should revisit this. To say that insurance companies need to cover protecting a woman’s right to choose? Absolutely.”

While the Legislature passed the Freedom of Reproductive Choice Act, it was narrower in scope than what some abortion advocates had hoped for. Provisions to eliminate out-of-pocket costs for abortions on state-regulated plans and expanding financial coverage for abortions regardless of immigration status were cut from the final bill.

“We know there were a lot of thing left out of that bill like mandating insurance coverage without co-pays or ensuring that folks who are undocumented also have coverage for abortion care,” Kaitlyn Wojtowicz, vice president of Public Affairs at Planned Parenthood Action Fund of New Jersey, said in an interview. “We would welcome working with the legislature to ameliorate that and make sure these really key pieces of that legislation are enacted and put in place to protect the people of New Jersey and allow for greater access.”

The bill Murphy signed did include a provision that could establish an insurance mandate for abortions on state-regulated plans, but only if the Department of Banking and Insurance completes a study finding that it is necessary. The public comment period for the DOBI study launched late last month and will continue until May 26.

It is also unclear what the scope of insurance coverage would be, as many state-regulated plans provide some level of coverage.

While cost provisions were excluded from the Freedom of Reproductive Choice Act, other measures were enacted to expand contraceptive insurance coverage and who could provide abortions.