In the wake of the Supreme Court decision overturning Roe v. Wade, Democrats are caught up in a war they thought they couldn’t lose, trying to fend off a wave of state anti-abortion laws. But Joe Biden, despite his reputation for caution and compromise, has bigger ambitions than playing defense.
After the Supreme Court abolished the right to abortion, the president pointed out that there is a way to restore it: through federal legislation. “We have to codify Roe v. Wade into law, and the way to do that is to make sure Congress votes to do that,” he said in June.
That would override state abortion bans. If passing it requires making an exception to the filibuster — which requires 60 votes for almost any bill — Biden said he’s ready to do it.
This is a pivotal change of heart, and one Democrats should build on. They have public sentiment on their side. A recent NPR/PBS NewsHour/Marist poll found that 56% of Americans opposed the court’s decision. A Pew Research Center survey found that 61% think abortion should be legal in all or most cases — with only 37% saying it should be illegal in all or most cases.
Abortion-rights supporters may despair at the obstacles that loom ahead. To begin with, Biden hasn’t got all 50 Democratic senators on board with his filibuster proposal. Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia have opposed the idea.
But he can certainly deploy all his leverage and deal-making skills to change their minds. The Supreme Court decision may have changed the political atmosphere enough to make them reconsider.
If that fails, Democrats can proceed to Plan B: campaigning in Senate races on a promise to reform the filibuster to protect abortion rights.
As Sen. Elizabeth Warren, D-Mass., said in June, all that is needed are “two more senators on the Democratic side, two senators who are willing to protect access to abortion and get rid of the filibuster so that we can pass it.” The issue could also help House Democrats by raising the stakes over who controls the lower chamber.
Pessimists may point out that any law passed by a Democratic Congress and signed by a Democratic president can be repealed by a Republican Congress and a Republican president — which the country may get in 2025. So codifying Roe might be a transient achievement.
It could even be replaced with a federal ban on abortion.
But a transient achievement is an achievement for as long as it lasts. Besides, there is no guarantee that the GOP will win the trifecta in 2024. Nor is it certain that if it does, every Republican would vote for a federal ban. Some might prefer to leave the matter up to the states, in deference to principles of federalism.
Democrats who support abortion rights but incline toward despair may conclude that Republicans wouldn’t need to repeal a codification of Roe — because it would not survive anyway. The law, after all, would have to pass muster with the same Supreme Court that just scrapped Roe.
Conservatives argue that the Constitution gives Congress no power to legislate abortion rights. Elon University law professor Thomas J. Molony wrote in The Wall Street Journal, “The Constitution doesn’t empower Congress to force states to allow abortion against their wishes.”
But this is a fight liberals can most likely win. The court has long taken an expansive view of the power of Congress over interstate commerce.
Ilya Somin, an originalist legal scholar at George Mason University, writes that “the Supreme Court has held that Congress’ power to regulate interstate commerce includes the authority to restrict almost any ‘economic activity,’ so long as it has a ‘substantial effect’ on interstate trade.”
What’s more, he says, “‘economic activity’ is defined very broadly to include anything that involves the ‘production, distribution, and consumption of commodities.'” As Somin notes, the court upheld “a federal ban on the possession of marijuana that had never crossed state lines or been sold in any market (even an intrastate one).”
Justice Brett Kavanaugh, who voted to overturn Roe, apparently has no issue with Congress legislating in this realm. In his concurring opinion, he wrote that the Constitution leaves abortion “for the people and their elected representatives to resolve through the democratic process in the states or Congress.”
After their demoralizing defeat on Roe, Democrats face a fearsome challenge in trying to restore the rights that were lost. But if there is anything to learn from the success of the anti-abortion cause, it’s that they should aim high and never give up.