Those who are meek are patient, gentle and merciful, drawing people together and salvaging relationships,…
Biden says he’ll make Roe the ‘law of the land’; what would that mean?
When Roe v. Wade was handed down by the Supreme Court in 1973, many Americans believed that the decision legalized abortion in the United States. But that’s not quite correct. Abortion was actually already legal in a handful of states, such as California, New York and Colorado. What Roe in fact did was overturn every law — legislation passed after careful deliberation in state legislatures, with the input of medical professionals — and declared them, in one fell swoop, to be unconstitutional. The decision has been vociferously criticized for decades, even from those legal scholars who support abortion. Edward Lazarus, Justice Harry Blackmun’s former law clerk (Justice Blackmun was the author of the Roe decision), is among them. He noted, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose.”
However, when questioned about the possible appointment of Judge Amy Coney Barrett to the U.S. Supreme Court, and a possible change in America’s current abortion law, Democratic Party presidential nominee Joe Biden, visibly agitated, stated, “The only responsible response to that would be to pass legislation to make Roe the law of the land. That’s what I would do.”
For activists on either side of the abortion debate who know the law well, Biden’s promise was code language: They know that Planned Parenthood v. Casey, the 1992 Supreme Court decision that reworked some of Roe’s legacy, is the legal decision that is currently the law of the land. Casey did not directly overturn Roe — or its companion case, Doe v. Bolton, which was decided on the same day and meant to be read alongside Roe) — but it did permit individual states to enact minimal restrictions on the procedure, so long as they did not impose an “undue burden” on a woman seeking the abortion. These Casey-permitted protections included 24-hour waiting periods, parental notification requirements for minors who seek abortions, and restrictions on some abortions after fetal viability. Activists on both side of the abortion debate know well that if Roe once again becomes “the law of the land” it will undo the fairly minimal progress made over decades of pro-life advocacy.
While a recent Gallup poll showed that most Americans don’t want to see Roe v. Wade overturned outright, a combination of 55% of those surveyed stated that they want abortion to be restricted altogether or limited to “only in a few circumstances.” The Gallup poll results also indicated that the vast majority of Americans still don’t understand the scope of Roe, even as we approach the ruling’s 50th anniversary.
When Roe v. Wade was decided in 1973, the Supreme Court relied on a “trimester framework,” one that permitted individual states to restrict, or the opinion noted, even “prohibit,” abortions in the third trimester of pregnancy — unless a woman’s “life or health are at stake.” What is critical here is how the word “health” is defined. In Doe v. Bolton, the court defined what it meant by “health” in the context of abortion.
Justice Blackmun’s opinion in Doe defined an abortion for “health” reasons as follows: “[M]edical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health.”
What this means is that depression is a “health” reason for a third-trimester abortion. So is age — for example, a woman who is 40, or a teenager who is 15, both have a constitutionally protected right to a third-trimester abortion on that basis alone. The “health” exceptions laid out in Doe are so broad as to render the Roe trimester framework virtually meaningless.
So radical were Roe and Doe’s impact on abortion practice in the United States that after the Senate Judiciary Committee held extensive public hearings in 1982, they released an official report of their investigations. The Judiciary Committee concluded: “As a result of the Roe decision, a right to abortion was effectively established for the entire term of pregnancy for virtually any reason, whether for sake of personal finances, social convenience, or individual lifestyle. … Thus, the Committee observes that no significant legal barriers of any kind whatsoever exist in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy.”
That’s what making Roe “the law of the land” means.
And for abortion activists, even returning to the time of abortion for any time and any reason won’t satisfy them. “Roe is important, but now we really think of that as the floor not the ceiling,” Destiny Lopez, a prominent abortion activist, told CBS news. The “above the floor” extensions to abortion law include vice presidential hopeful Kamala Harris‘ proposal to immediately subject any newly passed state pro-life law to a review by the Department of Justice, thus eliminating the work of state legislatures and the will of the people nationwide.
Supporters of legal abortion also say they will go even further to expand access to and funding for the procedure if the support of a Biden/Harris administration are elected in November. Most notably, both Biden and Harris have indicated they will work to overturn the Hyde Amendment, which prohibits federal tax dollars from being used to fund elective abortion procedures (there are exceptions for rape and incest, as well as the life of the mother).
Biden was once a strong defender of Hyde, an appropriations bill rider, renewed annually, which has enjoyed the majority of the public’s support since it was first enacted in 1976. It also has strong bipartisan support in both chambers of Congress. “If it’s not government’s business, then you have to accept the whole of that concept, which means you don’t proscribe your right to have an abortion and you don’t take your money to assist someone else to have an abortion,” Biden had previously insisted.
Political campaigns, no matter the party, might sometimes gloss over the truth, or lead the public to accept statements that don’t tell the whole story of the issue at hand. But Joe Biden’s commitment to making Roe the “law of the land,” goes beyond the normal political posturing, taking advantage of ignorance of so many people who for decades have been led to believe that Roe is a moderate abortion law. It is anything but — in fact, it is the exact opposite.
Mary Hallan FioRito is an attorney and the Cardinal Francis George Fellow at the Ethics and Public Policy Center in Washington, D.C., and the deNicola Center for Ethics and Culture at the University of Notre Dame. She writes from Chicago.