Biden gets philosophical about aborting 'a child,' but seems confused about the draft decision

President Biden held a press availability at Andrews Air Force base this morning during which he discussed the draft SCOTUS opinion. After some senior moment stammering and a statement about his view of the law he said “the idea that we’re letting the states make those decisions and localities make those decisions would be a fundamental shift in what we’ve done.”

Biden was then asked about the leak of the decision and he completely dodged the question. Next he was asked about codifying Roe into law, a promise he campaigned on, and it was at this point that he got philosophical saying “Roe says what all basic, mainstream religions have historically concluded, that the existence of a human life and being is a question.” Prepare to be enlightened:

“So the idea that we’re going to make a judgment that is going to say that no one can make the judgment to choose to abort a child based on a decision by the Supreme Court, I think goes way overboard,” he said.

I’m going to leave aside his comparative religion musings and just point out that the phrase “choose to abort a child” is one that you won’t hear on the lips of many pro-choice politicians. The “big lie” when it comes to abortion is that there’s no child present just a “fetus” or some will say “tissue” or a “clump of cells.” Maybe Biden missed a memo from Planned Parenthood on that topic. I’m sure his staff will point out to him that it’s best not to use the word “child” in future when discussing abortion. We’ll see if he can remember.

That aside, Biden is just wrong about what the draft decision says. It does not say that the Supreme Court is going to decide the abortion issue for everyone. On the contrary, as Biden has already said moments earlier, it would allow the people to make decisions about the legality of abortion through their elected representatives. Here’s are the relevant excerpts of the draft decision:

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g. its discussion of abortion in antiquity) to the plainly incorrect (e.g, its assertion that abortion was probably never a crime under the common law). After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that ‘might be found in a statute enacted by a legislature.

Under the scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve “viability,” i.e., the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on previability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave almost no sense of an obligation to try to be.”

At the time of Roe, 30 states still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the ‘exercise of raw judicial power’… and it sparked a national controversy that has embittered our political culture for a half-century.

And that brings us to Scalia’s conclusion, which is that this issue should once again be given back to the people to decide through their elected representatives at the state level:

Roe was egregiously wrong from the start. It’s reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Sealia, J, concurring in the judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.

Biden’s claim that the Supreme Court is saying “no one can make the judgment” about abortion is either deep confusion or pure misinformation. It’s precisely the opposite of what the draft decision is saying.

Even more confusing, Biden returned to the point about states and the people making the decision at the end of his press availability saying, “I’m not prepared to leave that to the whims…of the public at the moment in local areas.”

Dismissing the democratic process operating in all 50 states as “the whims…of the public” is a bold move for a president. I wouldn’t be surprised to see that clip wind up in a few campaign ads. Biden seems to know this decision would return the issue to the states, he says so twice in five minutes. And he must know that abortion isn’t going away in blue states like California and New York. So what is he trying to say here except maybe that Republican voters in red states don’t deserve a say. It’s “the whims” of those voters he’s determined to oppose. Here’s Biden full statement: