In December, the Supreme Court is scheduled to hear a case, Dobbs v. Jackson Women’s Health Organization, that many expect will eviscerate abortion rights. The Mississippi law at issue in Dobbs prohibits abortion at 15 weeks, the point at which the state (implausibly) claims a fetus can feel pain. But in Roe v. Wade and subsequent cases, the Supreme Court held that the government cannot prohibit a patient, in consultation with her doctor, from deciding to terminate a pregnancy before viability, the point at which survival is possible outside the womb — usually around the 24th week. And while Roe allowed states to prohibit abortion after viability, they had to permit it even then when “necessary to preserve the life or health of the mother.”
This means that in order to uphold Mississippi’s law, the court would have to either reverse Roe or open the door to at least some pre-viability bans. Texas’s SB8, which the Supreme Court permitted to go into effect in August, effectively banned all abortions six weeks after the last menstrual period. After the Supreme Court rules in the Mississippi case, many states may follow suit — and decide to criminally punish doctors who continue providing abortions.
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In response to these prospects, President Biden has vowed to push Congress to “codify Roe v. Wade” if need be — to pass federal legislation that would make the logic of that 1973 ruling the “law of the land.” With the present composition of the Senate, Biden’s vision might be a pipe dream. But if it can be realized, what would it mean to codify Roe, and would it be a good idea?
History shows just how tricky this could be.
Leaving some details out
Over 30 years ago, sponsors of the federal Freedom of Choice Act (FOCA) in the House and Senate promised to codify Roe and “to protect the reproductive rights of women.” The Democrats promoting FOCA no longer trusted the Supreme Court and the lower federal courts to protect abortion rights and looked to Congress for help.
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Abortion-rights supporters had reason for concern. In the 1989 case Webster v. Reproductive Health Services, the justices voted 5-4 to uphold a restrictive Missouri abortion law. Chief Justice William Rehnquist, in a part of the court’s opinion joined by three other justices, suggested that the “key elements of the Roe framework” — such as its delineation of when government could regulate abortion — were “not found in the text of the Constitution, or in any place else one would expect to find a constitutional principle.” Justice Sandra Day O’Connor did not join that part of the opinion, but she still voted that the Missouri law was constitutional and had already written opinions stating that Roe had adopted a “completely unworkable method of accommodating the conflicting personal rights” inherent in abortion. Justice Antonin Scalia, who likewise voted to uphold Missouri’s law, wrote separately to say that the court should have explicitly reconsidered and overruled Roe immediately. It was no surprise that Justice Harry Blackmun, the author of the Roe opinion, stated in his dissent that abortion rights were at risk.
Supporters of abortion rights thought that if they could not save Roe in the courts, they could do so in Congress. But the drafters of FOCA had to figure out how to write abortion rights into a federal bill that would have the votes to pass and would withstand future constitutional challenges. Under early versions of the bill, a state could “not restrict the right of a woman to choose to terminate a pregnancy” prior to “fetal viability” unless such a regulation was “medically necessary” to protect the woman. (The ruling in Roe had allowed for regulations intended to ensure informed consent and to protect patients from unsafe methods or unscrupulous practitioners, so FOCA’s language reflected that.) The bill also said that a state could not restrict the right to abortion at any time during pregnancy (including after viability) “if such termination is necessary to protect the life or health of the woman.”
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Between 1989 and 1991, FOCA did not advance in Congress, but support for it grew in 1992 after the Supreme Court decided Planned Parenthood v. Casey. In that decision, the Supreme Court opened the door to far more state regulation of abortion.
Casey followed Roe in treating fetal viability as the dividing line before which a woman must be allowed to terminate her pregnancy, but the ruling also held Roe to be too “rigid” in permitting no regulation at all during the first trimester and permitting regulations to protect potential life only after viability. Instead, Casey declared that a state could adopt “rules and regulations” throughout pregnancy to further both patient health and the state’s interest in protecting potential life.
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The joint opinion in Casey never referred to abortion as a “fundamental right.” And instead of subjecting state regulations to the kind of stringent judicial review (or “strict scrutiny”) that Roe had required, Casey declared that states could enact regulations that took effect at the beginning of pregnancy so long as they did not unduly burden a woman’s abortion decision. Under this less protective standard, states could regulate abortion throughout pregnancy to foster “informed choice” and express the state’s “profound respect for the life of the unborn,” so long as such regulations were “not a substantial obstacle” to exercising that choice. This justified regulations seeking to persuade women not to have abortions.
Roe had required courts to invalidate the majority of regulations on abortion. Casey, it seemed, would open the floodgates to more state restrictions.
So in 1992, Democrats came up with another definition of codifying Roe: restoring the way things were before Webster and Casey. The Senate Report for the Freedom of Choice Act of 1992 found that Casey had opened the door to sweeping restrictions that would increase the number of illegal abortions, force patients to travel out of state, and stop doctors from practicing medicine as they saw fit. Codifying Roe meant reversing the damage done by Casey — and recognizing that restrictive abortion laws affected the poor, the young, and patients of color most severely. The purpose of FOCA was to establish, through legislation, “the same limitations upon the power of states to restrict the freedom of a woman to terminate a pregnancy” that had been in place before Webster and Casey.
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What gave Congress the authority to try to codify Roe? The text of FOCA included a finding that while Congress did not have the authority to “create constitutional rights” through legislation, it did have “affirmative power” under the Constitution to enact laws to prohibit states from interfering with interstate commerce (under the Commerce Clause) and with women’s liberty and equal protection (under the 14th Amendment). Pointing to the fact that before Roe, women crossed state lines to obtain safe abortions, the report predicted a new era of “forced migration” with burdens on some states’ health care systems. The report also appealed to Congress’s power under the 14th Amendment to pass laws to protect women’s “liberty” and gender equality.
However, progressives disagreed on key details of what the ruling in Roe meant — and what it would take to save it. The text of the bill in 1992 stated that codifying Roe did not “prevent a state from declining to pay for the performance of abortion” or stop a state from mandating parental involvement. Nor did codifying Roe prohibit “conscience clauses” that allowed doctors to opt out of performing abortions.
There may have been good reasons for these omissions. For one, prior to Casey, the court had upheld all of these restrictions. If Congress did not define abortion rights too broadly, FOCA would be less in tension with such Supreme Court precedents. But opening the door to such restrictions created political obstacles to passing FOCA. Some progressives believed that Roe stood for a much further-reaching idea of reproductive rights and rejected proposals that did anything less.
Doing better than Roe
There were still more traps. When pro-choice groups proposed laws aimed at codifying Roe, abortion foes asserted that such bills went much further than the 1973 Supreme Court decision. In the ’80s and ’90s, groups like the National Right to Life Committee insisted that Roe allowed states to impose measures like mandatory counseling or waiting periods that FOCA ruled out. Antiabortion groups wanted to treat Roe (or a narrow interpretation of it) as the ceiling on protection for reproductive rights. Anyone who wanted more, the argument went, was an extremist.
The idea of codifying Roe divided Democrats in other ways too. Progressives such as Maxine Waters argued that by failing to ensure funding for abortion for women who could not pay for it, FOCA would let down the pro-choice movement’s most vulnerable constituents. Pragmatists in pro-choice groups like NARAL responded that the movement should take what it could get and strive for a more nearly ideal solution later on. Consensus about the importance of saving Roe concealed deep disagreements about how the movement should balance pragmatism and principle.
Similar issues could plague the contemporary Women’s Health Protection Act, which narrowly passed in the House in late September. The bill would forbid states from treating abortion differently from other comparably safe medical procedures and thereby limiting access to the procedure. The most recent version of the bill draws a connection between access to abortion and “reproductive justice” as part of a human right to reproductive health. It declares that health care providers have the right to provide abortion services and patients have the right to receive them. But most of the bill’s examples of abortion limits that it would prohibit are recent restrictions — a tactic that may be unwise when abortion opponents have proved infinitely creative in crafting new restrictions. The bill attempts to protect against any such new restrictions by imposing a very stringent test: There must be “clear and convincing evidence” that the restrictions advance safety or patient health. But much would turn — in these partisan and polarized times — on how courts applied such a test. And as with FOCA, the act does not provide abortion funding for those who cannot afford the procedure and relegates the issue to a separate bill.
If the name of the game is codifying Roe, supporters of legal abortion will have to decide how ambitious a bill to pursue, given that there will not be many chances to write reproductive rights into federal law. Pledging to codify Roe has only postponed conflicts about what should go into a federal bill protecting legal abortion — and which provisions are the most worth fighting for.
But the history of FOCA encourages us to consider a broader question: whether those who would write abortion rights into federal law would be better off abandoning some of the ideas set forth in the Roe decision.
The Supreme Court’s 1973 decision affirmed the right to abortion on the grounds that it preserved a woman’s right to privacy. Of course, many have made Roe a symbol of ideas well beyond anything said by the court in its original opinion — what the authors of the Women’s Health Protection Act describe as “the basic autonomy, dignity, equality, and ability of women to participate in the social and economic life of the nation.” But in practice, anchoring debate to Roe has been limiting. Focusing on the rhetoric of privacy has often meant discussing the abortion issue in isolation, separate from any idea of public health and public responsibility for reproductive health care. Treating abortion as an issue of privacy justified the Supreme Court’s decisions in later cases to uphold bans on public funding for abortion and further isolated abortion from other health care.
Roe also said little about the relationship between abortion and equality for women, let alone the broader issues of economic and racial inequality in access to health care that some have made part of calls for reproductive justice. History suggests that if Congress wants to write abortion rights into federal law, it may be better not to use Roe to set the terms of debate.
For the moment, a bill codifying Roe remains a fantasy. But if the Supreme Court reverses Roe v. Wade in the next several years, the political calculus might change: While polls show that Americans favor some restrictions on abortion, there is strong support for keeping the procedure legal, and bans on abortion early in pregnancy tend to be deeply unpopular. The Biden administration may eventually be able to codify Roe v. Wade, but now is the time to consider whether supporters of abortion rights can do better than that 1973 decision.
Linda C. McClain is professor of law at Boston University School of Law and author of “Who’s the Bigot? Learning From Conflicts Over Marriage and Civil Rights Law.” Mary Ziegler is professor at Florida State University College of Law and author of “Abortion and the Law in America: Roe v. Wade to the Present.”