Cecily Zamora
Following the Supreme Court's decision to overturn Roe v. Wade, there have been calls for Roe to be codified into law. In simple terms, to codify something means to enshrine a right or rule into a formal systematic code. This could be done through an act of Congress in the form of a federal law, such as the Women's Health Protection Act, which aimed to protect a person's right to end a pregnancy. However, this act was blocked by Republicans in the Senate, and there is currently little chance of the bill becoming law. Despite some politicians expressing support for codifying Roe, Congress is not currently looking to enshrine Roe in law.
| Characteristics | Values |
|---|---|
| Definition of Codify | To enshrine a right or rule into a formal systematic code |
| How to Codify Roe | Through an act of Congress in the form of a federal law |
| State Legislatures | Can codify rights by enacting laws |
| Congress | Needs to pass a law that provides the same protections as Roe |
| Law | Should state that women have the right to abortion without excessive government restrictions |
| Binding | Binding for all states |
| Political Support | Bipartisan efforts to codify Roe, supported by Democratic senators and President Joe Biden |
| Legislation | Women's Health Protection Act, introduced in 2019 and reintroduced in 2022 |
| Constitutional Authority | 14th Amendment, which allows Congress to enforce liberty guarantees by "appropriate legislation" |
| Obstacles | Filibuster rule, which requires 60 votes in the Senate to pass legislation |
| State Laws | Liberal states like Massachusetts have passed laws codifying Roe |
| State Action | Some states are protecting residents who help out-of-state women seeking abortions |
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What You'll Learn
Roe v. Wade hasn't been in place since 1992
Roe v. Wade, the 1973 Supreme Court decision that ruled that unduly restrictive state regulation of abortion is unconstitutional, has been a subject of controversy and debate since its inception. The ruling recognized the right to abortion, affirming that the right to decide whether to continue a pregnancy is protected by the liberty clause in the 14th Amendment.
However, it is important to note that Roe v. Wade hasn't been in place since 1992. In that year, the Supreme Court's ruling in Planned Parenthood v. Casey affirmed Roe but also significantly modified it. The Casey ruling established that restrictions on abortion are unconstitutional if they place an "undue burden" on a person seeking an abortion before the fetus is viable. This ruling allowed states to restrict abortion as long as the burdens on access were not too severe, and courts have upheld a range of restrictions that made abortion more difficult to access, particularly for vulnerable populations.
Despite some politicians expressing a desire to codify Roe into law, Congress has shown little interest in doing so. Codifying Roe would involve passing a federal law that affirms a pregnant person's right to an abortion without undue interference from the government. The Women's Health Protection Act, which aimed to codify Roe, was introduced in 2019 and passed in the House in 2022, but it is unlikely to pass in the Senate due to Republican opposition and the filibuster rule.
With the Supreme Court's 2022 decision to overturn Roe v. Wade, the focus has shifted to state-level efforts to protect or restrict abortion rights. Some states have passed laws codifying Roe, while others have enacted bans on abortion, highlighting the growing divide between blue and red states on this issue.
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The Women's Health Protection Act
The Act uses the language of the Casey ruling, acknowledging that abortion access is essential for women's participation in economic and social life. It appeals to the recognition that "the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." The WHPA also addresses the hundreds of laws and targeted regulations against abortion providers that make it challenging for medical providers to offer abortion services and for women to access them.
The WHPA would establish a statutory right for healthcare providers to offer abortion care and a corresponding right for patients to receive that care. It aims to eliminate medically unnecessary restrictions and bans on abortion, such as mandatory waiting periods, biased counseling, two-trip requirements, and mandatory ultrasounds. The Act seeks to ensure that individuals, not politicians, are in control of their personal healthcare decisions.
The passage of the WHPA faces significant challenges due to opposition in the Senate. Republicans have successfully blocked the Act, and without eliminating the filibuster rule, which requires 50 to 60 votes in the Senate to pass legislation, the chances of it becoming law are slim. However, there have been calls for bipartisan efforts to codify Roe, and it remains to be seen how the Supreme Court's decision will impact the legislative landscape.
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The Supreme Court's Planned Parenthood v. Casey ruling
In 1992, the Planned Parenthood v. Casey ruling was a landmark decision by the Supreme Court of the United States. The ruling upheld the right to abortion established by Roe v. Wade in 1973. The ruling also restored the undue burden standard when evaluating state-imposed restrictions on abortion access.
The case arose from a challenge to five provisions of the Pennsylvania Abortion Control Act of 1982, including requirements for a waiting period, spousal notification, and parental consent for minors seeking an abortion. The Supreme Court upheld the "essential holding" of Roe v. Wade, which recognised a woman's right to choose to terminate a pregnancy. However, the Court abandoned the trimester framework established by Roe, replacing it with a focus on viability. This change allowed states to impose restrictions on abortion after the point of fetal viability.
The plurality opinion, written by Associate Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, emphasised the right to abortion as grounded in the liberty and privacy protections guaranteed by the Constitution. They concluded that Roe's strict scrutiny standard was not applicable and instead adopted the lower, undue burden standard for evaluating state abortion restrictions. This standard considers the burdens imposed by a law on abortion access, along with the benefits those laws provide.
The Planned Parenthood v. Casey ruling was a significant modification of Roe v. Wade, and it left the door open for future challenges to abortion rights. Despite affirming the central holding of Roe, the ruling shifted the legal framework and introduced new considerations for evaluating abortion restrictions.
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State laws and abortion rights
The Supreme Court's overturning of Roe v. Wade in June 2022 has left abortion rights in the hands of individual states, with near-total bans already in place in over a dozen states. This has resulted in a divide between abortion "deserts" and "havens", where abortion is illegal or available, respectively. While some states are attempting to restrict abortion as much as possible, others are taking steps to protect abortion rights. For example, some states are seeking to criminalize aiding women who go out of state for abortions, while others are protecting residents who help women seeking abortions from out of state.
Prior to the overturning of Roe v. Wade, abortion was legal across the United States, though access was uneven, with low-income people, people of color, young people, and others facing obstacles to abortion care. Roe v. Wade had prevented states from banning abortion before fetal viability, and while it was in place, most states repealed their pre-Roe abortion bans. Now that Roe has been overturned, states with pre-Roe abortion bans that were never repealed may attempt to revive them.
The Women's Health Protection Act, which aimed to protect abortion rights, was blocked by Republicans in the Senate and is unlikely to pass without eliminating the filibuster rule. Bipartisan efforts to codify Roe into federal law have failed, but some state legislatures, primarily in liberal states, have passed laws codifying Roe v. Wade.
To codify Roe v. Wade at the federal level, Congress would need to pass a law providing the same protections as Roe, affirming a person's right to abortion without excessive government restrictions. This law would be binding for all states. However, Congress does not appear interested in enshrining Roe in law, and with the Democrats in danger of losing seats in the Senate and House in the upcoming midterm elections, the chances of passing legislation protecting abortion rights appear slim.
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Constitutional challenges
The codification of Roe into law has faced several constitutional challenges. The Supreme Court's interpretation of the Constitution is not required to preserve existing abortion rights nationwide. However, the passage of such a bill has faced political obstacles, with Republicans in the Senate successfully blocking the proposed Women's Health Protection Act. The Act used the language of the Casey ruling, which stated that TRAP laws placed an "undue burden" on those seeking abortions.
Even if Congress passes a law codifying the right to abortion, it may not pass a court challenge claiming that the Constitution does not give it the authority to enact such a law. The Supreme Court has previously distinguished between legislation to enforce constitutional rights and legislation to define those rights. Congress's power to regulate interstate commerce is another possible avenue for supporters of a national Roe law. However, the Supreme Court has placed limits on this power, as seen in the United States v. Morrison case, where the Court invalidated portions of the federal Violence Against Women Act (VAWA).
If Congress were to pass a law enshrining the right to abortion for all Americans, conservative states might attempt to overturn it, arguing that the federal government is exceeding its authority. The conservative-majority Supreme Court would presumably look unfavorably on any attempt to limit individual states' rights regarding abortion.
The midterm elections could also impact the chances of passing legislation protecting abortion rights. If the Democrats lose the House or fail to gain seats in the Senate, it would be challenging to push through such legislation.
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Frequently asked questions
To codify Roe into law means to enshrine a right or a rule into a formal systematic code.
Roe can be codified into law through an act of Congress in the form of a federal law. State legislatures can also codify Roe by enacting laws.
There are several challenges to codifying Roe into law. One is that Congress is not looking to enshrine Roe in law as Roe v. Wade hasn't been in place since 1992 due to the Planned Parenthood v. Casey ruling. Another challenge is that any law codifying Roe may face court challenges claiming that the Constitution does not give Congress the authority to enact such a law.
There have been several efforts to codify Roe into law, including the Women's Health Protection Act, which was blocked by Republicans in the Senate. Other legislation introduced by Republican senators Susan Collins and Lisa Murkowski would codify Roe, but it is not as expansive as the Women's Health Protection Act and has also failed.
The chances of Roe being codified into law are slim unless there are dramatic changes in Congress. The midterm elections may also impact the chances of Roe being codified, as the makeup of Congress could change.
