South Carolina just became the latest state to pass a “heartbeat bill,” banning abortion at eight weeks. Lawmakers characterized the bill as relatively moderate — and touted its exceptions for rape, incest, or a fetal anomaly “incompatible with sustaining life after birth.”
Last Friday, a federal court temporarily blocked the law from going into effect. Even so, the new law shows that abortion restrictions early in pregnancy aren’t going away. If anything, making an early abortion a crime has become the new normal in red states. And now the Supreme Court has six conservative members — including three Trump nominees — who may overturn the core holding of Roe v. Wade, the 1973 decision recognizing a right to choose abortion before viability. In fact, laws like South Carolina’s are an invitation for the court to abandon Roe. If that happens, over half the states would implement laws that go even further and criminalize most or all abortions.
This raises a big question for President Biden: What is his administration planning to do about it?
On the campaign trail in 2020, Biden vowed to make Roe “the law of the land” if the Supreme Court reversed it. Democrats now control both the House and the Senate. If Congress passed a federal law protecting abortion rights, it could preempt laws like South Carolina’s. But passing an abortion-rights law will not be as easy as Biden made it sound.
Consider the history. In the late 1980s and early 1990s, the court had a conservative supermajority, and Congress was controlled by Democrats, just as it is now. Bill Clinton wanted to make Roe the law of the land by passing the federal Freedom of Choice Act. That would have prohibited states from interfering with a right to choose before fetal viability. (It permitted later abortions if a woman’s life or health was in danger). But when it came time to dig into the details, Democrats found themselves hopelessly divided. Moderates insisted on restrictions for minors and limits on abortion funding, including preserving the Hyde Amendment, which blocks federal dollars from supporting almost all abortion care. Many progressives refused to make those compromises. As conflict within the Democratic Party intensified, abortion-rights legislation fell off the radar.
True, the Democratic Party seems more unified in the aftermath of Trump. Take the Hyde Amendment and its ban on abortion funding as an example. Progressives long had the amendment in their crosshairs, but moderates had learned to live with it. Now, with a few exceptions, the Democrats have solidified their opposition to the Hyde Amendment. But an effort to codify Roe could divide today’s Democratic Party in other ways.
First, there is the question of what exactly would be on the table: We don’t know what Biden meant when he promised to make Roe the law of the land. “Roe” can stand for everything from the rules laid out in the 1973 decision to a robust idea of reproductive justice.
For example, abortion-rights lawmakers have rallied around the Women’s Health Protection Act, a bill once co-sponsored by then-senator Kamala Harris. The bill rules out some common contemporary abortion restrictions, including laws outlawing abortion early in pregnancy. In addition, the bill instructs judges to invalidate access restrictions that treat abortion differently from other medical procedures. But the Women’s Health Protection Act may not go far enough for many progressives. It doesn’t say a word about abortion funding, even though cost is the biggest hurdle for most patients seeking an abortion, with three-fourths of low-income patients struggling to pay for the procedure. A separate bill, the Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act, would require coverage for abortion care through federal health programs. Yet passing one abortion bill will be hard enough, let alone two. By treating funding as a separate issue, the Women’s Health Protection Act omits a key component of ensuring abortion access.
Second, even if the Democrats make Roe the law of the land, whatever that might mean, the Supreme Court may keep any such law from going into effect. States that seek to ban abortion undoubtedly will challenge the law as an attack on their power to legislate. Given the litigation on the Affordable Care Act and disputes over the balance of state and federal power, the constitutionality of any statute like the Women’s Health Protection Act is uncertain at best. Congress could argue that it is enforcing rights under the 14th Amendment of the Constitution, which guarantees due process under the law and has been interpreted to apply to abortion. But when Congress and the court disagree about the scope of those rights, the court’s interpretation trumps. A court primed to reverse Roe will almost certainly see the right to choose differently from a Democratic Congress.
With the prospects for federal legislation so unclear, what could the Biden administration do if the Supreme Court abandons the constitutional right to an abortion and states like South Carolina criminalize the procedure?
Progressives have floated the idea of adding justices to the Supreme Court or implementing some other reform, such as a term limit. At the moment, the Biden administration is not making court reform a priority, and polls suggest that a majority of Americans oppose changing the number of justices. Those numbers may well change if the court abandons Roe, but if the Biden administration adds justices, the next Republican president could do the same. The court could become big, partisan, and unwieldy — and protection for abortion could change from election to election. That would not achieve Biden’s aims in the long run.
Instead, the administration might make a greater difference by expanding and protecting access to abortion by medication — a two-drug regimen taken over two days before 10 or 11 weeks of pregnancy. The Food and Drug Administration could begin the process of permanently removing restrictions on medication abortion, such as the requirement that patients collect the first drug at a health care facility. Evidence shows that the requirement adds little or no value from the standpoint of patient health. More immediately, the Biden administration could instruct the FDA to suspend restrictions on how patients receive medication abortion, which is what the FDA has done for numerous other drugs during the COVID-19 pandemic.
Perhaps most significantly, the administration could help ensure that abortion services are accessible because they are affordable. That would mean dismantling bans on federal funding, such as the Hyde Amendment, and passing the EACH Woman Act while guaranteeing federal financial support for providers and clinics.
Any student of history knows that when it comes to abortion, the law on the books can matter less than access on the ground. If the Biden administration wants to make good on its campaign promises on abortion, that is one lesson the president can’t afford to forget.
Rachel Rebouché is the associate dean for research and a professor at Temple University School of Law. Mary Ziegler is a professor at Florida State University College of Law and author of “Abortion and the Law in America: Roe v. Wade to the Present.”