Democrats want to ‘codify’ Roe v. Wade. What does that mean — and could they do it?


Hours after news broke Monday evening of the leaked draft opinion from the U.S. Supreme Court that suggested it could be on the verge of overturning nearly 50 years of constitutional rights to abortion, a flurry of voices began calling on the Biden administration to “codify” Roe v. Wade, or simply “codify” abortion rights into law.

On Tuesday, U.S. President Joe Biden told reporters, “Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned.”

He went on to say, “At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

Those comments were echoed by Democratic Senate Majority Leader Chuck Schumer. “It is my intention for the Senate to hold a vote on legislation to codify the right to an abortion in law,” he said.

So what does codifying abortion rights mean, and could it be achieved? And would it override a U.S. Supreme Court decision? Here are some answers.

What does ‘codify Roe v. Wade into law’ mean?

Plainly speaking, it means the U.S. Congress would pass a federal law guaranteeing a person’s right to obtain an abortion in all 50 states.

“I think when people use this term, codify, what they’re trying to say is we need to have protections that don’t depend on what the Supreme Court does,” said Linda McClain, a law professor at Boston University who focuses on family law, gender and law, and feminist legal theory.

“For 50 years, this issue has ultimately wound up in the courts. And now this need to have legislative protections is all the more urgent.

A woman rallies for abortion rights in Austin, Texas, on Tuesday in response to the news that the U.S. Supreme Court could be poised to overturn Roe v. Wade. ((Jay Janner/Austin American-Statesman/The Associated Press)

Congress tried most recently to enshrine abortion access into federal law with the Women’s Health Protection Act, which would protect access to abortion across the U.S. by making it the right of health-care professionals to provide, and for patients to receive, abortion care.

The act passed in the U.S. House of Representatives last September by a vote of 218-211, but a motion to go ahead with the bill in the Senate was defeated 46-48 in February, largely along party lines, with Democratic Sen. Joe Manchin voting with the Republicans.

There’s been some speculation since Monday that the Senate may try to revive the act, perhaps by tweaking it in committee and bringing it back to the Senate floor. 

It still remains a long shot, though, considering Schumer stopped short of promising to change the Senate’s filibuster rule to allow Democrats to overcome Republican obstruction, as some party advocates are demanding. 

What did the Women’s Health Protection Act do?

The Women’s Health Protection Act was a bid to protect constitutional rights around abortion as a matter of federal legislation.

“So that states … would be violating this federal law if they continue to pass the sorts of TRAP laws or other restrictions that states have been passing,” said McClain. 

TRAP stands for Targeted Regulation of Abortion Providers. According to the ACLU, they “create burdensome and medically unnecessary regulations for abortion clinics that are written with the goal of forcing them to shut down.”

Biden suggested Tuesday that his administration is exploring other options, too.

In a statement from the White House, he said he had directed the Gender Policy Council and the White House Counsel’s Office “to prepare options for an administration response to the continued attack on abortion and reproductive rights, under a variety of possible outcomes in the cases pending before the Supreme Court.”

WATCH | What could Biden or the U.S. Congress do to save abortion rights? 

Polls don’t support reversing Roe v. Wade, says U.S. legal scholar

U.S. law professor Kimberly Wehle says she wasn’t surprised by the draft opinion that the Supreme Court could overturn Roe v. Wade. 3:28

If codifying abortion rights into law fails in the Senate, where will that leave abortion rights in the U.S.? 

States have been busily passing a raft of abortion-related laws in advance of the Supreme Court’s final decision on a Mississippi law that challenges Roe v. Wade, seeking to reimpose a ban on abortion after 15 weeks.

Other Republican-led states have moved swiftly, with new restrictions passed this year in at least six states. On Tuesday, the governor of Oklahoma signed a ban outlawing abortions after six weeks — before many women know they are pregnant.

About half of U.S. states are expected to ban abortion if Roe falls, according to the abortion rights think-tank Guttmacher Institute. Twenty-two states, largely in the South and Midwest, already have total or near-total bans on the books. Aside from Texas, all are now blocked because of Roe.   

WATCH | Access to abortion is a fundamantal human right, says Canadian sexual health expert: 

‘Abortion is health care,’ says sexual health and rights expert

Access to abortion is a fundamental human right, said Meghan Doherty of Action Canada for Sexual Health and Rights. Overturning the 1973 Roe v. Wade case that legalized abortion in the U.S. would harm a lot of people, she said. 5:24

Republican-led states have also been working to restrict access to medication abortion, which would allow women to get abortions without the burden of travelling to clinics that may be few and far between. 

More than half of U.S. abortions are now done with pills rather than surgery, according to the Guttmacher Institute. In 2020, pills accounted for 54 per cent of all U.S. abortions, up from about 44 per cent in 2019.

Can individual states opt to ‘codify’ laws that support abortion? 

Boston University law professor Linda McClain expects blue states will not only enshrine the right to abortion into law, but also protections for those trying to help people in red states access abortion care. (Submitted by Linda McClain)

Yes. At least three Democratic-led states this year have passed measures to protect abortion rights.

In California, Democrats who control the state legislature and the governor’s office issued a joint statement late Monday announcing they would seek to amend the state’s constitution to enshrine abortion rights. 

“California will not stand idly by as women across America are stripped of their rights and the progress so many have fought for gets erased,” the California Democrats wrote.

“We know we can’t trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution. Women will remain protected here.”

States that allow abortion might also act to help women from jurisdictions where abortion is heavily restricted or banned. 

“The things to keep your eye on are blue states, say, like Connecticut, trying to pass laws that not only will protect their own residents, but protect people in Connecticut who try to hold people from arrest to come to Connecticut for abortion services,” McClain said. 

“The blue states are trying to pass laws that will allow them to help people from other states. Meanwhile, the red states are trying to pass laws that will punish people for going out of state or assisting someone to go out of state to get reproductive health care. So there’s this very messy between-state business going on.” 

A 2021 poll by the Pew Research Center found that 59 per cent of U.S. adults believe abortion should be legal in all or most cases, while 39 per cent thought it should be illegal in most or all cases.





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