Abortion's Legal Limbo: Why No Codification?

why was abortion never codified into law

Abortion has been a contentious issue in the United States for decades, with strong opinions on both sides of the debate. The Supreme Court's Roe v. Wade ruling in 1973 established a constitutional right to abortion before fetal viability, but this decision has been a source of ongoing political and legal controversy. While some states have moved to protect abortion rights, others have sought to restrict or ban abortion altogether. The issue of abortion has become deeply politicized, with Democrats generally supporting abortion rights and Republicans largely opposing them. Despite calls to codify Roe, Congress has not passed legislation to protect abortion rights at the federal level, and the Supreme Court's recent decision in Dobbs v. Jackson has left the legality of abortion up to individual states.

Characteristics Values
Definition of "codify" To enshrine a right or rule into a formal systematic code
Codifying Roe v. Wade Passing a law that affirms a pregnant person's right to an abortion without undue interference
Most effective way to codify Roe v. Wade For Congress to pass a law, such as the Women's Health Protection Act, that would be binding for all states
Why hasn't Roe v. Wade been codified? Roe v. Wade hasn't been in place since 1992 due to the Supreme Court's Planned Parenthood v. Casey ruling
Current attempts to codify Roe v. Wade The Women's Health Protection Act, introduced in Congress by Rep. Judy Chu and sponsored in the Senate by Sen. Richard Blumenthal in 2021
Outcome of the Women's Health Protection Act Passed in the House, but blocked in the Senate

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The Supreme Court's Planned Parenthood v. Casey ruling modified Roe v. Wade in 1992

The ruling also replaced the strict scrutiny standard of review of a state's abortion restrictions with the undue burden standard.

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The Women's Health Protection Act was blocked by the Senate

The Women's Health Protection Act, a Democrat-led bill, was blocked by the Senate in May 2022. The bill aimed to codify a right to abortion and prohibit governmental restrictions on the provision of, and access to, abortion services. It also sought to protect individuals' right to interstate travel for abortion services.

The bill was introduced in the Senate by Senator Tammy Baldwin, a Democrat from Wisconsin, on March 8, 2023. However, it failed to pass the Senate, as it did not reach the required 60-vote threshold. The vote was 49-51, with all Democrats voting for the bill except for Senator Joe Manchin of West Virginia, and all Republicans opposing it. Vice President Kamala Harris presided over the vote.

The blocking of the bill by the Senate came at a time when women's constitutional rights were under threat, with the Supreme Court's leaked draft opinion indicating a likely overturn of the Roe v. Wade decision, which had protected abortion rights for nearly 50 years. President Joe Biden and Senate Majority Leader Chuck Schumer expressed disappointment at the failure of the bill, stating that it went against the will of the majority of American people.

The focus now shifts to efforts by more moderate Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska, who are working on a narrower approach to abortion legislation. Their bill aims to codify Roe v. Wade in some form but includes restrictions that many Democrats disagree with. While there are ongoing discussions between Democratic Senator Tim Kaine of Virginia and these Republican senators, it is acknowledged that even this bill may not have enough support to pass.

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Roe v. Wade was controversial from the outset

The Supreme Court's decision in Roe was among the most controversial in U.S. history. In addition to the dissent, Roe was criticized by some in the legal community, including some who thought that Roe reached the correct result but went about it the wrong way, and some called the decision a form of judicial activism. Others argued that Roe did not go far enough, as it was placed within the framework of civil rights rather than the broader human rights. The decision also radically reconfigured the voting coalitions of the Republican and Democratic parties in the following decades. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision; polls into the 21st century showed that a plurality and a majority, especially into the late 2010s to early 2020s, opposed overruling Roe.

In June 2022, the Supreme Court overruled Roe and Casey in Dobbs v. Jackson Women's Health Organization on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition", nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe.

The overturning of Roe v. Wade has resulted in abortion bans in nearly half of the states, with more restrictions likely to follow. The decision may also mean that the court itself, as well as the abortion question, will become a focal point in elections. Several states, including Mississippi, North Carolina, and Wisconsin, still have decades-old abortion bans on their books; with Roe overturned, these states could revert to a pre-roe environment.

The ruling in Roe v. Wade was controversial from the outset, and the debate surrounding it has continued to divide public opinion in America.

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The democratic process is hostile to abortion rights

In June 2022, the US Supreme Court overturned Roe v. Wade, the landmark Supreme Court ruling from 1973 that established abortion as a fundamental right. This decision has had a profound impact on abortion access across the country, with individual states now having the power to restrict or prohibit abortion entirely. This has resulted in a patchwork of abortion laws and policies that vary widely from state to state, creating confusion and logistical hurdles for people seeking abortion care.

The democratic process at the state level has been particularly hostile to abortion rights. In many states, anti-abortion lawmakers and activists have used democratic mechanisms to enact restrictive abortion laws and policies. For example, some states have amended their constitutions to declare that they do not protect abortion rights or allow public funds to be used for abortion. In other states, lawmakers have passed laws prohibiting abortion before fetal viability or imposing various restrictions on abortion providers. These laws often do not increase patient safety and are counter to evidence-based clinical guidelines.

Additionally, there have been efforts to restrict abortion access through voting laws and procedures. For instance, restrictive voting laws and structural biases in electoral and voting systems can disadvantage women's participation, both as voters and candidates. This creates barriers to electing more women and people of colour into state legislatures, who are more likely to support and adopt policies that provide abortion protections.

Furthermore, the democratic process has been used to challenge and undermine the results of ballot initiatives and referendums that support abortion rights. In some states, lawmakers have altered or attempted to block the implementation of citizen-led initiatives that aim to protect abortion rights. This undermines the will of the voters and highlights the tension between democratic processes and abortion rights.

The commitment to democracy in the context of abortion rights is further complicated by the influence of religious beliefs and ideological positions. Some opponents of abortion rights view the issue as a "sacred cause" that may outweigh the importance of maintaining democratic practices. This can lead to a disregard for democratic processes and institutions when they are perceived as aligned against their cause.

Overall, the democratic process in the United States has been characterised by a struggle between those seeking to protect and expand abortion rights and those seeking to restrict and prohibit abortion. The democratic mechanisms that are meant to uphold the rights and freedoms of citizens have, in this case, been utilised to curtail and deny those very rights and freedoms for many.

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The Supreme Court has the final word on what is and isn't protected by the Constitution

Article III of the US Constitution establishes the federal judiciary, including the Supreme Court. The Supreme Court is the highest court in the land and is the court of last resort for those seeking justice. It has the power of judicial review, which means it can declare a Legislative or Executive act in violation of the Constitution.

The Supreme Court has the final say on what is and isn't protected by the Constitution. This includes the power to strike down state laws found to be in violation of the Constitution. Before the passage of the Fourteenth Amendment in 1869, the provisions of the Bill of Rights were only applicable to the federal government. After the Fourteenth Amendment, the Supreme Court ruled that most of its provisions were also applicable to the states.

In the case of Roe v. Wade, the Supreme Court established the constitutional right to abortion before fetal viability. However, in June 2022, the Supreme Court overturned Roe v. Wade, leaving the legality of abortion up to individual states. This decision has had a significant impact on society, with abortion becoming illegal in 13 states as of October 2024.

The Supreme Court's role in interpreting the Constitution and safeguarding civil rights and liberties is crucial. It ensures that popular majorities cannot pass laws that harm or take advantage of unpopular minorities. The Court's decisions have far-reaching consequences, shaping the lives of millions of Americans.

Frequently asked questions

To codify Roe v. Wade would mean passing a federal or state law that affirms a pregnant person's right to an abortion without undue interference. The most effective way to do this would be for Congress to pass a law that would be binding for all states.

Abortion has been a highly controversial issue since the Roe v. Wade ruling in 1973. While there have been attempts to codify the decision, all have failed due to strong opposition and the political nature of the topic. The Supreme Court's Planned Parenthood v. Casey ruling in 1992 also modified the original Roe v. Wade decision, making codification more complex.

As of June 2022, the Supreme Court overturned Roe v. Wade, leaving the legality of abortion up to individual states. Currently, abortion is illegal in 13 states, with varying restrictions and protections in place across the country.

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