Roe V Wade: Can It Be Law?

In the wake of the Supreme Court's decision to overturn Roe v. Wade, there have been calls for the ruling to be codified into law. Roe v. Wade, a 1973 landmark case, established abortion as a fundamental right for pregnant women. While some politicians have expressed support for codifying Roe, Congress is not actively pursuing this course of action. The most effective way to enshrine Roe into law would be for Congress to pass a federal law, such as the Women's Health Protection Act, binding all states. However, this faces significant political challenges, with the bill requiring 50 votes in the Senate to overcome the filibuster and pass.

The Women's Health Protection Act

The WHPA is designed to eliminate abortion bans and restrictions, which are seen as a violation of reproductive justice and the human right to maintain bodily autonomy. These restrictions disproportionately harm those already facing discriminatory barriers to accessing healthcare, particularly communities of color, women, and low-income individuals. The Act intends to protect all people with the capacity for pregnancy, including cisgender women, transgender men, non-binary individuals, and others, from unjust restrictions on abortion.

The Act specifically addresses the issue of so-called TRAP (Targeted Regulation of Abortion Providers) laws, arguing that they place an "undue burden" on individuals seeking abortions. It seeks to prevent medically unnecessary restrictions and bans on abortion, such as mandatory waiting periods, biased counseling, multiple trip requirements, and mandatory ultrasounds. The WHPA would create a statutory right for healthcare providers to offer abortion services and for patients to receive those services without bans or unnecessary restrictions that impede access.

The Freedom of Choice Act

The Act also recognised that access to abortion is essential for women to participate equally in the economic and social life of the nation. It attempted to codify Roe v. Wade by stating that before fetal viability, abortion providers have the right to provide access to abortion, and women have a right to receive it without facing unnecessary obstacles.

However, despite attempts by Democratic members of Congress to pass the Freedom of Choice Act, it faced significant political obstacles and was unable to garner enough support in the Senate. This highlights the challenge of codifying Roe v. Wade into federal law, as it requires navigating a divided political landscape and overcoming opposition from those against abortion rights.

Political obstacles

Despite calls from politicians to "codify Roe", there are several political obstacles to enshrine Roe v. Wade into law.

Firstly, Congress is not looking to enshrine Roe in law. This is because Roe v. Wade has not been in place since 1992, when the Supreme Court's Planned Parenthood v. Casey ruling affirmed it but also modified it significantly. The Casey ruling upheld a woman's right to terminate a pregnancy up to the point of fetal viability but concluded that Roe too severely limited state regulation before fetal viability. As a result, states could impose restrictions on abortion throughout pregnancy to protect potential life and maternal health, including during the first trimester.

Secondly, the Women's Health Protection Act, which aimed to protect a person's right to end a pregnancy and healthcare providers' ability to provide services to that end, did not pass the U.S. Senate. The bill is unlikely to pass without eliminating the filibuster, which would require 50 votes in the Senate. While Democratic Senator Joe Manchin has expressed support for a bipartisan effort to "put forward" legislation to "codify the rights Roe v. Wade previously protected", he opposes eliminating the filibuster.

Thirdly, the midterm elections in November could significantly impact the composition of Congress. If the Democrats lose the House or fail to gain seats in the Senate, the chances of passing legislation protecting abortion rights would be slim.

Finally, even if a bill making abortion legal nationwide were to pass, it would likely face constitutional challenges from anti-abortion activists and organizations. These petitioners would possibly have the support of the conservative-majority Supreme Court. Additionally, the Supreme Court is not bound by federal law unless it chooses to be, and a right-wing Supreme Court could overturn any attempt to federally protect abortion rights.

State vs federal law

The Supreme Court's decision to overturn Roe v. Wade has sparked calls for the codification of abortion rights into law. This can be done at the state or federal level.

State Law

Some states have already passed laws that codify Roe v. Wade, such as Massachusetts. Other states are going a step further by protecting residents who help out-of-state women seeking abortions. These laws counter the actions of states like Missouri, which is seeking to criminalize helping women who go out of state for abortions.

Federal Law

The most effective way to codify Roe v. Wade would be for Congress to pass a federal law that would be binding on all states. This could be done through an act of Congress, such as the Women's Health Protection Act, which passed in the House but is considered unlikely to pass in the Senate.

Despite calls from President Joe Biden for lawmakers to act, Congress is not currently looking to enshrine Roe in law. This is partly due to the controversial nature of Roe, which has been consistently challenged and lacked support from many current members of the Court.

The codification of Roe v. Wade into law remains a divisive issue, with advocates and politicians calling for action to protect abortion rights, while others oppose such measures. The midterm elections may impact the chances of any legislation being passed, with a potential shake-up in Congress.

Roe v Wade's legacy

Roe v. Wade, the 1973 landmark case that made abortion a fundamental right across the United States, was overturned by the Supreme Court in 2022. In the aftermath, several politicians and advocates called for the codification of Roe v. Wade into law.

Roe v. Wade's Legacy

The Roe v. Wade ruling established the constitutional right to an abortion before foetal viability, which was usually around 24 weeks into a pregnancy. The ruling transformed national politics and created a divide between voters and party leaders. It also led to the emergence of a new wedge issue and a realignment of political parties.

Roe v. Wade's legacy is also seen in the attempts to codify it into law. Codifying Roe v. Wade would mean passing a law that affirms a pregnant person's right to an abortion without undue interference. This could be done through an act of Congress in the form of a federal law, or through state legislatures enacting laws. The most effective way to codify Roe v. Wade would be for Congress to pass a law that would be binding for all states. However, this is also the least likely option, as many states are opposed to abortion and would not support such a law.

Despite calls from politicians and advocates to codify Roe v. Wade, Congress is not looking to enshrine it into law. This is because Roe v. Wade hasn't been in place since 1992, when the Supreme Court's Planned Parenthood v. Casey ruling affirmed it but also modified it significantly. The Casey ruling upheld Roe's holding that a woman has the right to choose to terminate a pregnancy up to the point of foetal viability but also concluded that Roe too severely limited state regulation before foetal viability. As a result, states could impose restrictions on abortion throughout pregnancy to protect potential life and maternal health, including during the first trimester.

In the absence of federal legislation, some liberal states have passed laws that codify Roe v. Wade, while other states have enacted restrictions on abortion rights. The Women's Health Protection Act, which aims to protect a person's right to end a pregnancy and healthcare providers' ability to provide services, has been proposed as a way to codify Roe v. Wade at the federal level. However, this legislation has not passed in the Senate due to political obstacles and the filibuster.

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