The first objection — voiced by virtually every national advocacy group for reproductive rights — is that the Reproductive Freedom for All Act does not include explicit enough language to bar pre-viability abortion bans, like the 15-week ban in Mississippi that sparked the Dobbs case to begin with. For this reason, they say, the bill doesn’t actually codify Roe v. Wade.

This is the most controversial objection. The bill clearly states a government cannot impose an undue burden on a woman’s right to an abortion before fetal viability, and that fetal viability is determined by a woman’s attending doctor, not the state. While it’s likely that medically unnecessary restrictions such as mandatory waiting periods could withstand the murky undue burden standard, an outright ban is a different question.

Kaine says the bill was specifically written to prevent pre-viability bans. “I practiced civil rights law for 18 years and virtually any intellectually honest judge would look at this and say Congress says you can’t impose an undue burden, which a ban clearly is,” he said. “While you may have rogue judges here or there, returning to the undue burden standard would give the judiciary not just the tools but also the mandate to throw out those kinds of laws.”