Democrats want to “codify” Roe v. Wade. What does this mean – and could they do it?


Hours after news broke Monday night about the US Supreme Court’s leaked draft opinion that suggested it may be set to strike down nearly 50 years of constitutional abortion rights, a flurry of voices began calling on the Biden administration to “codify” Roe v. Wade, or simply “codifying” abortion rights into law.

On Tuesday, US President Joe Biden told reporters, “The Roe has been the law of the land for nearly 50 years, and the fundamental fairness and stability of our law demands 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 pass legislation that codifies Roe, which I will work to pass and sign.”

Those comments were echoed by Senate Democratic Majority Leader Chuck Schumer. “I intend for the Senate to hold a vote on legislation codifying the right to abortion into law,” he said.

So what does it mean to codify abortion rights and could it be achieved? And would that overturn a US Supreme Court decision? Here are some answers.

What does “codify Roe v. Wade in the law”?

In plain English, this means that the US Congress would pass a federal law guaranteeing a person’s right to an abortion in all 50 states.

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

“For 50 years, this issue has finally found its way to the courts. And now, this need for legislative protections is all the more urgent.

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

Congress recently attempted to enshrine abortion access in federal law with the Women’s Health Protection Actwhich would protect access to abortion across the United States by making the right of health care professionals to provide abortion care and of patients to receive it.

The law passed the U.S. House of Representatives last September by a vote of 218 to 211, but a motion to move the bill forward in the Senate was defeated 46 to 48 in February, largely along party lines, with Democratic Senator Joe Manchin. vote with Republicans.

There has been speculation since Monday that the Senate could try to revive the law, perhaps fine-tuning it in committee and bringing it back to the Senate.

That remains a long shot, however, given that Schumer has not promised to change the Senate filibuster rule to allow Democrats to overcome the Republican filibuster, as some party supporters are demanding.

What did the Women’s Health Protection Act do?

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

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

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 intent of forcing them to close.”

Biden suggested on Tuesday that his administration was also exploring other options.

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

WATCH | What could Biden or the US Congress do to save abortion rights?

Polls do not support overturning Roe v. Wade, according to an American jurist

US law professor Kimberly Wehle says she was not 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 United States?

States passed a series of abortion laws ahead of the Supreme Court’s final ruling on a Mississippi law that challenges Roe v. Wade, seeking to reimpose an abortion ban after 15 weeks.

Other Republican-led states acted quickly, with new restrictions passed this year in at least six states. On Tuesday, Oklahoma’s governor signed a ban banning abortions after six weeks – before many women know they are pregnant.

About half of US states would have to ban abortions if Roe falls, says 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. Except for Texas, all are now blocked because of Roe.

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

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

Access to abortion is a basic human right, said Meghan Doherty of Action Canada for Sexual Health and Rights. Overturning Roe v. Wade’s 1973 which legalized abortion in the United States would hurt a lot of people, she said. 5:24

Republican-led states have also worked to restrict access to medical abortion, which would allow women to have abortions without having to go to clinics that can be few and far between.

More than half of abortions in the United States are now performed with pills rather than surgery, according to the Guttmacher Institute. In 2020, pills accounted for 54% of all abortions in the United States, up from about 44% in 2019.

Can individual states choose to “codify” laws that support abortion?

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

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

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

“California will not sit idly by as women across America are disenfranchised and the progress so many have fought for is 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 that right in our state constitution. Women will remain protected here.”

States that allow abortion could also act to help women in jurisdictions where abortion is heavily restricted or prohibited.

“The things to watch out for are blue states, say, like Connecticut, trying to pass laws that will not only protect their own residents, but protect the people of Connecticut who are trying to keep people from being arrested for they come to Connecticut for abortion services,” McClain said.

“Blue states are trying to pass laws that will allow them to help people in other states. Meanwhile, red states are trying to pass laws that will punish people for going out of state or helping someone one to go out of state for reproductive health care. So there’s this very messy interstate affair going on.”

A 2021 Pew Research Center poll found that 59% of American adults think abortion should be legal in all or most cases, while 39% think it should be illegal in most or all cases.