At a town hall meeting on Monday, Vice President Joe Biden addressed the possibility that a Republican-controlled Supreme Court will overturn Roe v. Wade. Biden said, “The only responsible response to that would be to pass legislation making Roe the law of the land; that’s what I would do.”
This sounds like a good answer—but it’s not. It’s an answer that reflects an establishment that is unwilling to come to grips with what a 6-3 conservative court will do to women’s rights. It’s an answer from a former senator who thinks passing legislation is the end of the political fight as opposed to the beginning of the legal one. It’s an answer designed to virtue-signal that abortion rights are important but not to commit to the two things that could actually secure those important rights: court expansion or a constitutional amendment.
Biden is hardly alone. Most of the Democrats who ran in the primary, including vice presidential candidate Kamala Harris, supported the idea of “codifying Roe v. Wade.” The Democratic Party seems to have convinced itself that a federal law protecting the right to an abortion will overcome an adverse Supreme Court from going back and overturning that law.
A federal law would be futile. It would be like telling the bully, “It’s against the rules to stuff me in a locker,” as he stuffs you into a locker.
Let me tell you how this is actually going to play out. First of all, a decision “overturning” Roe v. Wade will not be the same as a decision making abortion illegal. That’s not how conservatives plan to do this. Their plan is simply to overturn the constitutional “right” to an abortion and let the states do the rest of the work. Abortion will neither be constitutionally protected nor constitutionally prohibited. It will be up to the states to decide whether pregnancy turns women into incubators with no rights or some rights.
Let’s say that the Biden administration responds to that likely decision with federal legislation. What would that law actually look like? The law would probably say that women have a federally protected right to seek an abortion prior to fetal viability, and that doctors have a right to offer such services.
That sounds great, except it’s not the federal government that runs hospitals. It’s not the federal government that determines who is allowed to have a medical license. The states do that work. So while the president and Congress could pass a law protecting all manner of broadly popular reproductive rights, when Texas says that abortion doctors have to have admitting privileges at nearby (state or privately run) hospitals, or Alabama mandates psychological fitness exams for women seeking an abortion, or Ohio determines that fetal viability starts at conception, there’s not a lot the federal government can do to stop them. States’ rights arguments almost always mean “white cis-hetero men get to have rights; everybody else’s are optional.”
States will not provide abortion services or make it possible for women to access those services from private providers. That’s pretty much how it is now, even when there is a constitutional right to reproductive choice. If that right is taken away, federal legislation will have a hard time forcing the states to do things the Constitution no longer requires them to do.
In order for federal legislation protecting abortion rights to actually, you know, protect abortion rights, the federal government would have to get into the business of providing abortions directly. The federal government would have to send in its own federally authorized doctors to states restricting reproductive rights to provide the services it promised.
Even putting aside the reality that these services would stop the moment a Republican won the White House again, what on Earth makes anyone think the Democratic Party has the stomach to use the federal government (and taxpayer dollars) to provide abortion services directly? Joe Biden supported the Hyde Amendment (which restricted the use of federal funding, like Medicaid, to pay for an abortion) until two seconds ago. There is no universe in which Biden “codifies Roe v. Wade” and then sends an abortion truck into Georgia to provide the service.
Instead, the most likely scenario is that a federal law protecting abortion would be immediately countermanded or significantly undermined by a state law that refused to provide the services. There would be a conflict between state and federal law, which would lead to lawsuits, which would end up (wait for it) right back in front of the 6-3 Republican-controlled Supreme Court.
In the absence of a constitutional right to abortion, the federal government would have to argue that it has some other constitutional power to make the states provide or all allow access to family planning services. There aren’t many powers available to the government to force the states to provide services, other than the interstate commerce clause. The interstate commerce clause is the legal hook that allows the government to do things like make the South serve Black people lunch.
Which is why conservative justices hate the interstate commerce clause. One of the reasons conservatives want to take over the courts is to limit regulations authorized under the interstate commerce clause. The very reason the Affordable Care Act is constantly under legal threat is because John Roberts and the rest of the Republicans on the Supreme Court rejected the ACA as a regulation authorized by the interstate commerce clause.
A 6-3 court would reject federal abortion protections. It would call Biden’s new law an unconstitutional use of the interstate commerce clause. And it would reject any other constitutional basis for the law: Conservatives do not believe women are entitled to equal protection when it comes to their reproductive system, and we have not yet passed an Equal Rights Amendment to stop them. Republican-controlled states would defeat a federal abortion law in court, easily.
This is usually the point where coastal elites think, “Wow, stinks to live in flyover country. I’m going to tell all my friends at our pumpkin-spiced brunch.” There’s an assumption that even if abortion rights are stripped away in Republican-controlled states, blue states will still protect a woman’s right to choose.
But conservatives have a plan to take away abortion rights in states that vote Democratic. Their argument is called “fetal personhood,” and Harvard Law Professor Jeannie Suk Gersen has written that it is the next wave of the abortion wars.
Fetal personhood arguments are just what they sound like: They seek to elevate a fetus, still literally tied to the womb of a woman, to the status of a being with constitutional protections. A federal law protecting abortion rights will likely be challenged in federal court by conservatives arguing that the law fails to protect the constitutional rights of such fetuses. They’ll argue that abortion deprives these fetuses of due process. Justice Clarence Thomas has already hinted that he’d be willing to consider abortions as discriminatory procedures that disparately impact Black and brown “babies.”
Believe me when I tell you that conservatives are fully prepared to argue that a fetus has more rights than the woman carrying it. Believe me when I tell you they have no shame. Believe me when I tell you that fetal personhood is the true goal of conservatives like Amy Coney Barrett, who wrote that one problem with Roe v. Wade is that it recognized “no state interest in the life of the fetus.”
That’s how they’re going to get a national ban on abortion that overcomes any blue-state law to the contrary. This is why Biden’s proposed federal legislation is useless. It doesn’t protect abortion rights; it only protects the Democrats from having to do what is necessary to protect abortion rights.
A constitutional amendment protecting reproductive rights would stop the conservatives. A constitutional amendment establishing that women are entitled to equal rights and that they—not Republican men—hold the rights to their own bodies would also do some good.
If that is politically impossible, then court expansion—by which I mean zealous, robust expansion that overwhelms the conservatives with a raft of pro-precedent justices—would protect women’s rights as much as they have been over these past 50 years.
Everything else is failure. Everything else allows a Republican-stacked Supreme Court to hack away at any legislation that purports to protect women’s rights. Biden’s proposed legislation is the proverbial knife in a gun fight.
And let’s not forget: Biden is proposing to take this wholly ineffectual measure only “if” the Republican-controlled court blows up Roe. He’s not even offering this wet noodle as a preemptive strike but as some kind of retaliation of last resort. Biden is still willing to let Republican-controlled courts whittle abortion rights down to the point where they’re available to women only in the first commercial break after conception—just so long as he doesn’t hear “Roe v. Wade has been overruled” on the nightly news.
The Democrats are so far behind on this issue that they’ve lost contact with reality. It might have been useful to codify abortion rights 30 years ago; that might have encouraged Republicans to respond legislatively instead of legally. But the “safe, legal, and rare” Democrats didn’t do what they could then.
If Biden wins, we’ll see if the Democratic Party is finally ready to get dirty fighting for women’s rights, or if they just want to look pretty while losing the war.