Elizabeth Warren: Congress should pass Roe v. Wade

I don’t understand how lefties see this as a long-term solution to their abortion problem.

And maybe they don’t. Maybe it’s just turnout fuel for progressives in the midterms, not unlike their intense push to pass H.R. 1 knowing there was zero chance of that happening.

H.R. 1 was a “messaging bill,” something you run on to goose your base rather than legislation you sincerely and plausibly hope will become law. The same is presumably true of the “Women’s Health Protection Act,” which has been kicking around the Senate for a few years just in case Roe is overturned. That bill would authorize health-care providers coast to coast to continue performing abortions if they so choose, preempting any state abortion bans to the contrary via the Supremacy Clause. In theory a Democratic Congress could override the preferences of Republican state legislatures.

In practice, maybe not so much.

The idea is newly in vogue again among liberals thanks to SCOTUS’s refusal to enjoin Texas’s strange new private-enforcement abortion ban as litigation plays out. Yesterday afternoon it was Jen Psaki calling on Congress to act:

Last night Elizabeth Warren made the case:

Democrats control Congress and the White House, therefore Democrats can codify Roe. Pretty simple, no?

Well, no. They have a political problem and a constitutional problem. The political problem is that a non-budgetary matter like codifying Roe should rightly require 60 votes in the Senate to beat a filibuster. Schumer wouldn’t have anywhere near that number. His best-case scenario is 52, if he can somehow get Joe Manchin to stick with his party and convince Susan Collins and Lisa Murkowski to put their money where their mouths are when they claim to be pro-choice. But given the intense partisan polarization that would surround a serious effort to pass the Women’s Health Protection Act, Collins and Murkowski probably wouldn’t want to touch it. Especially Murkowski, who’s up for reelection next year.

No problem, said former Obama solicitor general Neal Katyal in an op-ed in June. Democrats don’t actually need 60 votes. They need 50! All they have to do is, uh, nuke the filibuster:

[I]f there is ever a piece of legislation that merits a departure from the filibuster, this is pretty much it. Recall that it was the Republicans in the Senate who bypassed the filibuster when they confirmed President Donald Trump’s three nominees to the Supreme Court, including Barrett.

And Trump campaigned on the claim that Roe would “automatically” be overturned once his Supreme Court nominees were confirmed. It can’t be that one side gets to play by a “no filibuster” rule and the other side doesn’t.

Manchin has voted reliably pro-life throughout his career and has resisted all pleas from his party to carve out exceptions to the filibuster, including for H.R. 1. It’s impossible to imagine him not only casting the 50th vote that would reestablish Roe as the law of the land after a conservative Court had just flushed it but turning around and nuking the filibuster to do so. His career would be over in a state as red as West Virginia.

Schumer could conceivably still get the bill passed without Manchin if he got Collins and Murkowski to flip, but at least one of them would need to provide the 50th vote for Democrats to create a filibuster carve-out. If Manchin’s unwilling to do that for fear of losing his seat, what are the odds that a Republican, even a centrist Republican, would?

Even if Schumer contrived a way to get the bill through, it’s not clear that Pelosi would have the votes in the House. Her margin is razor thin and centrist Dems are already nervous about blowout spending and the Afghanistan fiasco. Having Senate Dems move heaven and earth to codify Roe would put those House centrists on the hottest hot seat. If they refused, it would risk fracturing the party.

But imagine that somehow Schumer and Pelosi pulled a rabbit out of the hat and passed the bill, making it law. Repealing that law would be the GOP’s top legislative priority for years to come, a rallying cry for pro-life voters to turn out in 2022 and 2024 and empower the party to get rid of abortion once and for all. And remember: Since Roe would have already been overturned by SCOTUS in a scenario where the Democrats’ pro-abortion law matters, the GOP could do more than just repeal. They could pass their own law banning abortion nationally. What’s good for the goose is good for the gander. If blue states don’t like it, well, they should have thought of that when they were cheering on a Democratic Congress for forcing its abortion preferences on Republican states.

Imagine America oscillating between regimes in which abortion is legal everywhere and then legal nowhere every decade or so.

There’s a constitutional problem too. What authority does Congress have to pass a law legalizing abortion nationally? Katyal again:

Since the New Deal, the Supreme Court has given Congress broad powers over interstate commerce, and the case here would be ironclad, on par with the rationales that undergird civil rights laws and their prohibitions on discrimination in employment, restaurants and the like. There is no way the Supreme Court could void such a law without collapsing the scholarly and judicial consensus about the reach of government power, present at least since the New Deal but with its roots going all the way back to the Bank of the United States case McCulloch from 1819.

That’s a strange display of confidence in pre-90s Commerce Clause jurisprudence prevailing after the Court has spent several decades chipping away at it, most recently and famously in the ObamaCare decision. And SCOTUS is more conservative now than it was then with the addition of Gorsuch, Kavanaugh, and Barrett. I wouldn’t bet a dollar that, after overturning Roe, a majority of the Court would then turn around and rubber-stamp federal legislation to reenact the Roe regime as a lawful exercise of Congress’s power to regulate interstate commerce.

Conceivably Congress would be on firmer ground if it passed such a law under Section 5 of the Fourteenth Amendment, claiming that it was necessary to protect a woman’s liberty interest in being able to terminate her pregnancy. But the Court could just as easily declare that there is no such liberty interest; if there were, they wouldn’t have overturned Roe, right? Or the Court could hold that a fetus’s interest in its own right to life needs to be balanced against any liberty interest its mother might have. That would be the nuclear option, moving towards a new regime in which a fetus’s substantive due process rights become a barrier to any form of legal abortion. In that scenario, the Court would be headed towards declaring abortion illegal as a matter of constitutional law, beyond the reach of any legalization effort via statute.

If you think Supreme Court confirmation politics is hot now, wait until we reach that point.

Anyway, the “codify Roe!” stuff is really just a slogan to goose midterm turnout. Psaki and Warren realize that Republicans will be out in force next fall and they’re searching for a way to get Democrats similarly motivated to vote. The Court overturning Roe next year would hand it to them on a silver platter. “Reelect us to Congress and we’ll legalize abortion everywhere!” is their best chance of holding back a red wave.