Critics of the recent Dobbs v. Jackson Women’s Health Supreme Court ruling on abortion rights — President Joe Biden, Speaker Nancy Pelosi and many others — said abortion rights will be “on the ballot” this November. Strangely, they don’t seem to realize how difficult it would be to “codify” Roe v. Wade or something similar through congressional legislation, even if the Senate shutdown rule were somehow removed. Indeed, the only way to get close to the Roe rule is to leave the matter to the states.
Polls consistently show that about two-thirds of Americans support abortion rights, but only if those rights are limited in some way. Very few support the right to abortion throughout the ninth month of pregnancy, but the majority believe that women should have the right to an abortion for a limited period of time before the fetus has developed to the point where it can survive outside the womb. These views were reinforced by videos of fetuses moving in the early stages of pregnancy and cases of premature babies surviving shorter periods in the womb than doctors thought possible.
These realities will make it very difficult to structure federal legislation that would replicate Roe, which prevents states from restricting abortions before “fetal viability,” often described simply as before 24 weeks of pregnancy.
But Roe did not require states to have restrictions on abortion, and many states, such as California, New York and Colorado, have no such restrictions. In these countries, abortions can be performed – often with a doctor’s permission based on the woman’s health – at any time, even in the ninth month of pregnancy.
For Congress to reproduce Roe legislatively, then it could first provide that no state can impair the right to an abortion during, say, the first 24 weeks of pregnancy. That’s easy enough, and it mirrors what the Supreme Court did in Roe.
WASHINGTON, DC – JUNE 24: Speaker of the House Nancy Pelosi (D-CA) speaks to reporters minutes after the US Supreme Court threw out Roe v Wade, which guaranteed a woman’s right to an abortion, at the Capitol Visitor Center on June 24, 2022 in Washington, DC. Chip Somodevilla/Getty Images
But what about the many populous states that have no restrictions on abortion or those that have essentially banned it? Leaving some states free to continue to allow abortions until the ninth month of pregnancy would be a very difficult, if not impossible, vote for lawmakers and senators from states that either would not allow abortions after 24 weeks or would not allow abortions at all—probably a majority of House and Senate. It was easy to have a Roe-like rule when Congress didn’t have to vote on it.
Accordingly, it is hard to imagine how pro-abortion forces will make the Dobbs decision, or the issue of abortion in general, part of the midterm elections. What exactly would be “on the ballot?”
Democrats may try to motivate their voters with a general appeal to elect a Congress that restores the Roe rule, but the issue is already so well understood that many Democratic officials and candidates will have to make it clear to their constituents — and surely to their Republican opponents – with a position on exactly what they will vote for if they make it to Congress.
Democrats in states that currently allow abortion up to the ninth month would likely have to promise to vote to expand that level of access nationwide, while Democrats in states with more restrictions would have to promise not to allow California and others to offer unlimited abortion rights.
Putting abortion “on the ballot” is therefore unlikely to produce a favorable position for the Democratic Party.
Ironically, then, the only way to replicate Roe would be to bypass Congress and allow states to make their own rules—exactly what Republicans said resulted from the Supreme Court’s Dobbs decision.
Peter J. Wallison is a senior fellow at the American Enterprise Institute. He was White House counsel in the Reagan administration.
The opinions expressed in this article are the author’s own.
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