What is President Biden talking about when he speaks of “codifying Roe v. Wade”? Biden has used the expression many times and conspicuously repeated it two days after the inauguration in a joint statement with Vice President Kamala Harris.
Roe v. Wade is, of course, the Supreme Court decision in which the court struck down all state laws against abortion and legalized the practice nationwide. In a notably nasty touch, the Biden-Harris statement was released on the 48th anniversary of that infamous ruling.
As for “codifying” Roe, Biden almost certainly means pushing Congress to enact a sweeping pro-abortion bill called the Women’s Health Protection Act. The legislation, which has been kicking around in Congress for years, has little do with protecting women’s health and everything to do with making America the world’s pacesetter in permissive abortion.
The bill is best described as a kind of abortion rights catchall. Along with establishing a federal statutory right to abortion, it would sweep aside any and all state enactments that set limits to abortion and establish conditions for it to be performed. That includes measures barring late-term abortions, prescribing pre-abortion waiting periods and ultrasounds, and requiring that parents of minors who are seeking abortions be notified.
Biden’s promise to push for enactment of this frightful bill comes as the pro-life and pro-choice sides wait to see whether the Supreme Court will agree to review a case that many people think could produce a landmark ruling significantly modifying the Roe decision.
The case, Dobbs v. Jackson Women’s Health Organization, comes from Mississippi and involves a state law called the Gestational Age Act, enacted in 2018, that bars virtually all abortions after the 15th week of pregnancy. Dobbs is Dr. Thomas E. Dobbs, the state’s chief medical officer. The Women’s Health Organization, located in Jackson, is Mississippi’s only abortion facility.
The state is asking the Supreme Court to review and reverse a December 2019 ruling by the 5th Circuit U.S. Court of Appeals, which upheld a district court decision that overturned the law. Among the groups supporting Mississippi in its appeal are the state’s two Catholic dioceses, Jackson and Biloxi.
In its petition to the Supreme Court, the state argues that the Gestational Age Act is consistent with several of the court’s own abortion-related decisions. Barring late-term abortions, it further adds, is an important measure for the protection of women’s health inasmuch as the maternal mortality rate is far higher in late-term abortions than in abortions performed earlier in pregnancy.
The Dobbs case presents an early test of the widely held belief that the Supreme Court, with three justices appointed by former President Trump, now has a pro-life majority. The three, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, join the pro-life members already on the court: Justices Clarence Thomas, Samuel Alito, and presumably Chief Justice John Roberts.
The court’s liberals — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — are all firmly pro-choice and sure not to budge in this case or any other.
Supposing the court agrees to consider Dobbs, it’s an interesting question whether, given Biden’s support for abortion, his administration will intervene in opposition to a law that offers limited but real protection to unborn children. Chances are good it will.
And if so, we will be left to wonder how our president can square his repeated calls for national unity with a determination to pursue an egregiously disruptive and divisive policy on a practice — abortion — that millions of Americans rightly judge abhorrent.