In the 46 years since the Supreme Court’s decision in Roe vs. Wade affirmed a woman’s constitutional right to an abortion, opponents of the ruling have steadfastly refused to accept it, fighting a never-ending battle to chip away at its protections or to overturn it altogether.
State legislatures, defiantly and recklessly, have passed hundreds of bills in the last decade alone to limit the access to abortion that the Supreme Court has granted and reaffirmed over the course of three landmark decisions on abortion beginning with Roe in 1973. The latest was the high court’s 2016 decision overturning a Texas law that set unnecessary and unduly burdensome requirements for abortion clinics and for doctors working in them.
But that didn’t stop the state of Louisiana from passing an essentially identical law to the invalidated Texas one, clearly hoping that the inevitable challenge would reach the Supreme Court — and that the court would change its mind. The court has agreed to hear the case.
In fact, numerous legislatures in conservative states have passed restrictions on abortion that are patently unconstitutional under Roe vs. Wade, hoping to test the Supreme Court’s new conservative majority to see if it will permit the restrictions or, even better from their point of view, do away with Roe entirely.
There’s no immediate reason to believe the court is on the verge of reversing itself, but if it did, that would constitute an extraordinary step backward. Given the possibility, it is not unreasonable to be thinking about whether there are other ways to shore up abortion protections.
One suggestion is that Congress should pass a federal law guaranteeing the right to an abortion as a fallback in case Roe vs. Wade gets overturned.
The idea of “codifying” Roe into law received renewed attention when it was mentioned by several candidates at the last Democratic presidential debate. In fact, nearly all the candidates have expressed support for putting into a federal law what Roe guarantees — that a woman has a right to an abortion up to the time when the fetus becomes viable. That way, if the court backed away from the constitutional protections guaranteed by Roe vs. Wade, at least there would still be a national law protecting the right to an abortion.
Of course, if such a law is to be effective, it should do more than guarantee women the basic right to an abortion. It should explicitly state that access is part of the right to abortion and that states cannot restrict that access unduly.
In a separate proposal, Sen. Kamala Harris (D-Calif.) has suggested giving the Justice Department the authority to preapprove any abortion law proposed by a state — if that state had in the previous 25 years enacted abortion restrictions deemed unconstitutional by the courts. That idea is modeled on the “preclearance” process in the 1965 Voting Rights Act.
A preclearance rule would presumably stop unduly restrictive state abortion laws before they ever become law — so that defenders of abortion rights don’t have to go through the costly and time-consuming route of filing legal challenges to such laws, waiting for courts to hear their cases and appealing if necessary to higher courts.
But neither a preclearance rule — which would require a congressional law approving it — nor a codification of Roe vs. Wade would be guaranteed to pass. Both would have an uphill hill climb into law even if a Democratic president were to be elected next November. If the Senate remains Republican, the chances of either bill being approved would be low. It’s heartening that polls indicate that 77% of Americans support legal abortion — including even majorities of moderate and liberal Republicans and of Republican men. But it’s not clear how much weight that carries with conservative senators.
A bill has already been introduced that codifies Roe. The Women’s Health Protection Act would guarantee a right to abortion and forbid the onerous restrictions placed on providers and patients by various state bills. That’s great. It has more than 200 supporters in the House and 42 in the Senate. But without more support, it will go nowhere.
Even if these laws were passed, they would most likely be challenged in court.
No federal law would be a magic bullet. Nor would a law be as strong a protection of abortion rights as Roe vs. Wade has been. But that doesn’t mean advocates and elected officials shouldn’t fight for one as a fallback.
Right now, state laws are so restrictive that six states are down to only one abortion provider. Other states have sought to ban nearly all abortions. The battle to undermine Roe vs. Wade continues.
We should all hope that the Supreme Court stands by its five decades of precedent recognizing women’s rights to make decisions about their own bodies and their own futures. But as long as there’s worry that the Supreme Court might not give abortion rights its full-throated support, it’s worth pursuing a national law as well.