Originalism and judicial restraint for the win? That’s one takeaway from this answer about abortion and the Supreme Court from last night’s NBC News/MSNBC town hall with Joe Biden. Biden liked this exchange so much that he (or more likely his campaign) clipped it out and amplified it by proclaiming, “Roe v Wade must remain the law of the land”:
Roe v. Wade must remain the law of the land. pic.twitter.com/1Gq6Ncc2IK
— Joe Biden (@JoeBiden) October 6, 2020
BROWN: Hello, Mr. Biden. My youngest sister is in high school right now. And I knew whenever I was graduating high school and entering college that I wanted to obtain my degree and start a career before starting a family. Having access to birth control and safe reproductive health care was imperative in making that true for me. So considering the new Supreme Court nomination of Amy Coney Barrett, what are your particular plans to protect women’s reproductive rights in the U.S.?
BIDEN: Number one, we don’t know exactly what she will do, although expectation is that she may very well move to overrule — overview — overrule Roe. And — but the only thing, the only responsible response to that would be to pass legislation making Roe the law of the land. That’s what I would do.
Revealing? Certainly, but also a better answer in some ways than what the rest of Joe Biden’s party has demanded over the past couple of weeks. It might even appeal to those who honestly object to Roe v Wade more on institutional grounds rather than to abortion itself, at least primarily. The institutional argument is that the Supreme Court overextended its authority in Roe in an unconscionable fit of judicial activism. This issue should have been left to the legislative branches of the states, as people have argued for nearly fifty years after Roe. The opposition to that point of view is that legislative action is not sufficient to protect women’s agency over their own bodies.
Now, however, Biden appears to suggest that legislation would be sufficient, although he’s proposing it at the federal level. If Roe (and Casey, which is now controlling on abortion issues) get struck down, would Congress have jurisdiction to legalize abortion in all fifty states? Arguably yes, by the same authority Congress claimed in passing ObamaCare. However, it would require something far short of abortion on demand until the moment of birth, which has become the position of the Democratic Party, in order to pass Congress, especially the Senate. Even without a filibuster, any legislation legalizing abortion over the objection of states would necessarily have to follow public opinion on restrictions — which would move the window back to Roe and first-trimester limits in most cases.
The other option would also be institutionally more credible than Roe, which would be to amend the Constitution to create an explicit right to abortion. That would be even tougher, though, and the filibuster won’t matter — it would take two-thirds of both chambers to pass, and thirty-eight states would have to ratify it. That would almost certainly require more stringent restrictions than even a regular bill in Congress would include to have any hope of passage and eventual ratification.
Oddly, Biden never mentions the strategy his party has pushed since Ruth Bader Ginsburg passed away — court packing. Lester Holt never asked about it, either.
However, this answer is not going to make Catholics any happier with Biden. The existence of Roe has created a curious free zone for Catholic Democrats by largely removing abortion policy from elections. That allows politicians like Biden to claim to personally oppose abortion so as to keep their Catholic identity while pledging not to interfere with Roe (and Casey). If Roe gets overturned, though, suddenly Biden’s on the hook for acting to maintain legalized abortion — and that overt act will put him at odds with the Catholic Church and many Catholic voters. And both sides have recognized the importance of winning Catholics in this election.
In that sense, this is a risky answer by Biden. He might have been better off sticking with the court-packing strategy.