Codify Roe: Can Democrats Do It – And What Does It Even Mean?

Thanks to the leaked draft of Supreme Court Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, the left is scrambling to “codify Roe.” To that end, Senate Majority Leader Chuck Schumer (D-NY) has vowed to give the Women’s Health Protection Act of 2021 (WHPA) another shot at the Senate floor. But can the Democrats do it, codify Roe, and what does that even mean?

A Technical Problem

What does it mean to codify Roe? Well, that’s an elusive answer. The Supreme Court ruled on whether a specific abortion restriction was constitutional – so a strict interpretation might mean a law saying something along the lines of “the decision reached in Roe v. Wade is correct.” In reality, it seems to be another “Russian collusion” and “assault rifle” kind of thing; that is, it actually isn’t a real, legal thing – but the left will certainly try to legislate it into being. According to the Democrats pushing the WHPA, it means declaring abortion “essential health care” and allowing any health care provider to perform an abortion – including through “telehealth” by allowing the prescription of pregnancy-ending medication over the phone – without any prior testing so long as it’s “pre-viability.” Abortions would also be safeguarded in any pregnancy, even post-viability, that could be deemed a threat to the mother's health, of course. It went so far, in fact, that the self-declared pro-choice Republicans in the Senate, Lisa Murkowski of Alaska and Susan Collins of Maine, both rejected it and introduced their own bill, the Reproductive Choice Act (RCA). Their bill is much simpler:

“SEC. 3. CLARIFICATION OF ALLOWABLE STATE REQUIREMENTS.

(a) In General. – A State –

(1) may not impose an undue burden on the ability of a woman to choose whether or not to terminate a pregnancy before fetal viability;

(2) may restrict the ability of a woman to choose whether or not to terminate a pregnancy after fetal viability, unless such a termination is necessary to preserve the life or health of the woman; and

(3) may enact regulations to further the health or safety of a woman seeking to terminate a pregnancy.”

But, of course, Democrats don’t want this version. It’s the WHPA they’re promising to resuscitate.

A Numbers Problem

Never in this nation’s nearly 234 years of existence has Congress passed and a president signed into law a federal protection for – or ban against – the so-called right of a woman to end her pregnancy by terminating her unborn child. Pre-Roe, there were only state laws that allowed or prohibited the act. Post-Roe, there were only state laws and the Supreme Court ruling that denied states the authority to restrict beyond a certain point. That isn’t because politicians haven’t been trying; both the Abortion is Health Care Everywhere Act and the Abortion is Not Health Care Act have been introduced to both the current and previous Congress – and numerous other attempts have been made by both sides. For years now, the problem has been simply one of numbers. Neither Democrats nor Republicans have controlled the presidency, a simple majority in the House, and a 60-vote majority in the Senate since the 95th Congress of 1977-1979. And instead of “codifying Roe,” that’s the Congress that gave America the Departments of Labor and Health, Education, and Welfare, Appropriations Act of 1977, which included the famous Hyde Amendment restricting the use of appropriated funds to pay for abortions through the Medicaid program – an amendment that Joe Biden supported throughout his career before needing to appear more progressive. Democrats control both Houses, White and of Representatives, but their “majority” in the Senate is largely spin. There are 48 Democrats and two Independents who caucus with them arrayed against 50 Republicans in an even split; the only reason the left can claim a lead is the fact that the tie-breaking VP is on their side. When it came to busting the filibuster for the WHPA when last Schumer forced the issue, the cloture vote failed 46-48. Every Republican but three voted, and each said “nay.” Every Democrat but three voted, and each said “yea” – except for one: Joe Manchin (D-WV). Even despite the nays having the clear majority, the left still barked about how a “minority” was able to overthrow the will of the majority thanks to the filibuster, which, of course, simply didn’t happen in that case.

The numbers are the same – and the vote will likely go about the same when brought up again should Sen. Schumer actually get around to it. Those who defended the filibuster on this very same law suddenly changing their minds remains unlikely. But let’s assume they do. What happens then?

A Legal Problem

Let’s imagine that either a minimum of 50 senators plus the vice president kill the filibuster for a law like the WHPA or the RCA or that at least 60 agree to pass one without changing the chamber’s procedures. Congress is “allowed” to pass whatever law it wants assuming it has the numbers. For such a measure to be deemed legally unconstitutional, it would have to be challenged in court first. Make no mistake; any federal abortion law, whether it guarantees access or blanket bans it, would not escape immediate legal challenge. And since it would be a state (or more likely many states) suing the nation, that lands immediately at the Supreme Court. Regardless of whether Alito’s draft becomes official, the nine justices would then finally be forced to examine the question of whether the Constitution grants the federal government the authority to regulate abortion or if it remains with the states. It seems pretty clear where Justice Alito stands on that – but just because four others on the Court agreed with him on how Dobbs should be handled doesn’t necessarily mean they all think the federal government doesn’t hold this power. Perhaps all five believe the same thing – that Roe must be overturned because the authority to regulate abortion belongs with the states – but then again, perhaps not.