At a town hall meeting Monday, Vice President Joe Biden raised the possibility of a Republican-controlled Supreme Court overturning Roe v. calf. Biden said, “The only responsible answer to that would be to pass laws roe the law of the land; I would do that. “
That sounds like a good answer – but it isn’t. This response reflects an establishment that is unwilling to face what a conservative 6-3 court will do for women’s rights. This is a response from a former senator who believes that passing laws is the end of the political struggle, not the beginning of the legal struggle. This response is intended to signal that abortion rights are important, but not to commit to the two things that could actually secure those important rights: the expansion of the court or a constitutional amendment.
Biden is hardly alone. Most Democrats, including Vice Presidential candidate Kamala Harris, supported the idea of ”codification Roe v. calf. “The Democratic Party appears to be convinced that a federal law protecting the right to abortion will prevent an adverse Supreme Court from withdrawing and repealing that law.
A federal law would be pointless. It would be like telling the bully, “It’s against the rules to put me in a locker” while he is stuffing you in a locker.
Let me tell you how this is actually going to play out. First of all, “overturn” a decision Roe v. calf will not be the same as an abortion decision illegal. That’s not how conservatives plan it. Their plan is simply to repeal the constitutional “right” to abortion and let states do the rest of the work. Abortion is neither constitutionally protected nor constitutionally prohibited. It is up to states to decide whether pregnancy makes women incubators with no or some rights.
Let’s say the Biden government responds to this likely decision with federal law. What would this law actually look like? The law would likely say that women have a federally protected right to request an abortion before the fetus is viable, and that doctors have the right to provide such services.
That sounds great, except that the federal government doesn’t run hospitals. It is not the federal government that determines who can have a medical license. States do it. While the president and Congress could pass legislation protecting all kinds of widespread reproductive rights, Texas says that abortion doctors must have licensing rights in nearby (state or privately owned) hospitals, or Alabama writes psychological fitness exams for Women before seeking an abortion or Ohio finds that fetus viability begins upon conception. There is not much the federal government can do to stop them. State rights almost always mean that “white cis-straight men have rights; All others are optional. “
States will not offer abortion services or allow women to access these services from private providers. So it is pretty much exactly now, even if there is a constitutional right to reproductive choice. If this right is taken away, federal law will find it difficult to force states to do things that the Constitution no longer requires them to do.
In order for federal abortion rights protection laws to actually protect abortion rights, the federal government would have to conduct abortions directly. The federal government would need to send its own state-licensed doctors to states that restrict reproductive rights to provide the services that have been promised.
Even leaving aside the reality that if a Republican wins the White House back, those services would stop, what on earth makes anyone believe the Democratic Party has the stomach to use the federal government (and taxpayers money) to provide abortion services directly? Joe Biden supported the Hyde Amendment (which restricted the use of federal funds like Medicaid to pay for an abortion) until two seconds ago. There is no universe in which Biden “codifies” Roe v. calfAnd then sends an abortion cart to Georgia to do the service.
Instead, the most likely scenario is that a federal law protecting abortion would be immediately disproved or significantly undermined by a state law that refused to provide the services. There would be a conflict between state and federal law that would lead to lawsuits ending right (waiting for) the Republican-controlled Supreme Court (6-3).
Without a constitutional right to abortion, the federal government would have to argue that it has some other constitutional power to get states to provide family planning services or to allow all. Aside from the intergovernmental trade clause, the government does not have many powers to compel states to provide services. The interstate trade clause is the legal catch that allows the government to get things like the south to serve blacks lunch.
That is why conservative judges hate the interstate trade clause. One of the reasons Conservatives want to take over the courts is to restrict the regulations approved under the Interstate Commerce Clause. The reason the Affordable Care Act is constantly under legal threat is because John Roberts and the rest of the Supreme Court Republicans rejected the ACA as an interstate trade clause-approved regime.
A 6-3 court would reject federal abortion protection. It would call Biden’s new law an unconstitutional application of the interstate trade clause. And it would oppose any other constitutional basis for the law: Conservatives don’t believe women are entitled to equal protection in relation to their reproductive systems, and we haven’t passed an equality amendment to stop them. Republican-controlled states would easily defeat a federal abortion law in court.
This is usually when the coastal elites think, “Wow, it stinks to live in overflight land. I’ll tell all my friends over our pumpkin spice brunch. “It is believed that even if abortion rights are revoked in Republican-controlled states, blue states continues to protect a woman’s right to vote.
But conservatives plan to take away abortion rights in democratic voting states. Their argument is called “fetal personality,” and Harvard law professor Jeannie Suk Gersen has written that it is the next wave of abortion wars.
Fetal personality arguments are exactly what they sound like: They are trying to elevate a fetus that is still literally attached to a woman’s womb to the status of a being with constitutional protection. A federal law protecting abortion rights is likely to be challenged in federal court by conservatives who argue that the law does not protect the constitutional rights of such fetuses. They will argue that abortion robs these fetuses of due process. Justice Clarence Thomas has indicated that he would be willing to view abortions as discriminatory practices that affect black and brown “babies” differently.
Believe me when I tell you that conservatives are willing to argue that a fetus has more rights than the woman who bears it. Believe me when I tell you they are in no shame. Believe me when I tell you that the fetal personality is the true target of conservatives like Amy Coney Barrett who helped write this one issue Roe v. calf is that it recognized “no government interest in the life of the fetus”.
In this way, they receive a national abortion ban that overcomes any contrary law of the blue state. Because of this, Biden’s proposed federal legislation is useless. Abortion rights are not protected. it only protects Democrats from having to do what is necessary to protect the right to abortion.
A constitutional amendment to protect reproductive rights would hold up the conservatives. A constitutional amendment that states that women have the right to equality and that they – not Republican men – have the rights to their own bodies would also do something good.
If this is politically impossible, then the enlargement of the court – by which I mean an arduous, robust enlargement that overwhelms the Conservatives with a series of precedents – would protect women’s rights just as it has for the past 50 years.
Everything else is a failure. Everything else allows a Supreme Court piled up of Republicans to hack laws purporting to protect women’s rights. Biden’s bill is the proverbial knife in an exchange of fire.
And let’s not forget: Biden is proposing that this wholly ineffective measure be taken only if the Republican-controlled court blows up roe. He doesn’t even offer this wet noodle as a preemptive strike, but rather as a kind of retaliation of last resort. Biden is still willing to let Republican-controlled courts restrict abortion rights to the point where women don’t have them until the first commercial break after conception – just as long as he doesn’t hear anything.Roe v. calf has been overridden ”on the nightly news.
The Democrats have lagged so far behind on this issue that they have lost touch with reality. It might have been useful to codify abortion rights 30 years ago; that could have encouraged Republicans to act legislatively rather than legally. But the “safe, legal, and rare” Democrats weren’t doing what they could then.
If Biden wins, we’ll see if the Democratic Party is finally ready to dirty fight for women’s rights, or if they just want to look pretty while losing the war.