With ‘Roe’ on the Line, Some Democrats Seek Federal Codification of Abortion Rights

Democrats passed on making Roe federal law under Clinton and Obama. Now they say they're ready to protect abortion rights from state-level interference.

[Photo: A split-screen image of Corey Booker (L), Kamala Harris and Elizabeth Warren (R).]
A successful 2020 election could give Democrats yet another opportunity to shield abortion rights from anti-choice legislators on the state level. Many members of the 2020 Democratic presidential field have already co-sponsored recently-introduced legislation to do so. Ethan Miller/Getty Images, Spencer Platt/Getty Images,

Some Democrats are coalescing around the idea of federal protections for abortion rights. They say this could be a step toward safeguarding the right to abortion as state lawmakers move to enact restrictions and bans that could criminalize abortion should the landmark Roe v. Wade decision fall.

A successful 2020 election could give Democrats yet another opportunity to shield abortion rights from anti-choice legislators on the state level.

Many members of the 2020 Democratic presidential field have already co-sponsored recently introduced legislation to do so. They’ve also pledged to act to codify abortion rights federally and work to protect and expand access to reproductive health care should they be elected.

Among them is Sen. Elizabeth Warren (D-MA), who has a detailed plan explaining how passing a law through Congress could work as part of her broader strategy to “protect choice.” Sen. Corey Booker (D-NJ) in mid-April pitched the federal codification of Roe as a way to address abortion restrictions during a series of campaign stops in Georgia centered on voting rights and reproductive justice, and has since pitched the creation of an “Office of Reproductive Freedom” to protect and expand access to reproductive health care.

Sen. Kirsten Gillibrand (D-NY) has made a series of vows related to reproductive health and rights, including ending the discriminatory Hyde Amendment’s ban on federal funding for abortion care, and to “guarantee access to reproductive health care, including abortion, no matter what state you live in.” And Sen. Kamala Harris (D-CA) last week announced a plan that, like the Voting Rights Act of 1965 did on voting issues, would require states with a history of anti-choice restrictions to get federal approval before creating new abortion laws. According to BuzzFeed News, “codifying Roe, Harris’s campaign said, ‘simply … isn’t enough’; states could still pass restrictive laws, which would then have to be challenged by courts.”

After reaching out to all of the Democrats in the race, BuzzFeed NewsEmma O’Connor recently reported that 22 of the 24 campaigns contacted emailed statements confirming that “their candidate supported codifying Roe v. Wade through laws in Congress.”

Destiny Lopez, co-director of All* Above All, which organizes to lift bans on abortion coverage, suggested to Rewire.News that codifying the right to an abortion on a federal level was realistic. “At this point, we need to be putting our proactive vision out there,” she said.

“We are hopeful that one day we will…have a pro-abortion administration in the White House and control both houses of Congress. And if that’s the case and when that’s the case, we want to have a vision for what that could look like. And so I think that we need to be putting out there all of our best ideas about how to ensure affordable and accessible care.”

Leila Abolfazli, director of federal reproductive rights at the National Women’s Law Center, told Rewire.News that when discussing the codification of Roe, “language is important because, especially in the moment we’re in right now, I think it’s really important to remind people that the right to abortion is a constitutional right.”

“When we talk about what we need right now given the lack of access [to abortion]—which is the fruit of decades of attacking access—I stay away from codification of the right because…I’m not sure what that means,” she said. Instead, Abolfazli explained, she sees “eliminating the hurdles and burdens that states have been able to pass” as worthy of examination. While the Supreme Court’s 2016 decision in Whole Woman’s Health  v. Hellerstedt, did a lot to address abortion restrictions such as targeted regulation of abortion providers (TRAP) laws, “there are a range of other laws that have passed that similarly need to be dealt with,” Abolfazli said.

That’s why legislation in the U.S. Congress such as the Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act and the recently reintroduced Women’s Health Protection Act (WHPA) seek to address what “it mean[s] to actually be able to exercise” the right to an abortion.

“We have the constitutional right to abortion, but for many across the country, particularly individuals struggling to make ends meet, people of color, [and] young people, the access is really limited,” Abolfazli said. “And so the question is, what federal policies can you pass … to support access rather than just focusing on [if] you have that right itself?”

There is a historical precedent for moving to codify the right to abortion into federal law. In fact, pro-choice lawmakers have tried to do so for years.

Missed Opportunities to Codify Abortion Rights Into Federal Law

Codifying the right to an abortion on the federal level isn’t a new idea. Prior to the U.S. Supreme Court’s 1973 decision in Roe v. Wade, Congress made attempts to codify abortion rights into federal law in the early 1970s—first with the National Abortion Act, introduced by Oregon Republican Sen. Robert Packwood and then the Abortion Rights Act, introduced in the House by Rep. Bella Abzug (D-NY) a few years later.

In the late 1980s, some worried about an imminent threat to Roe given state-level anti-choice restrictions, efforts from the White House to see the decision overturned, and the Supreme Court’s decision in Webster v. Reproductive Health Services Inc. Congressional lawmakers made another effort to pass a federal law to codify the right to an abortion, filing bicameral legislation to do in 1989.

The first iteration of the Freedom of Choice Act (FOCA) in the Senate was sponsored by Sen. Alan Cranston (D-CA) and co-sponsored by 26 other senators, including Packwood and several other Republicans. “This truly bipartisan legislation is very simple, and it is very straightforward,” Cranston said during a 1990 hearing on the legislation before the Committee on Labor and Human Resources. “It is designed to codify the 1973 Roe v. Wade decision and protect the rights of individual women to make their own decisions regarding whether or not to carry a pregnancy to term.”

As the early 1990s progressed and the Court heard other abortion cases, the legislation was repeatedly introduced. With Republican President George H.W. Bush in office, however, it had little chance of being signed into law. Bush vowed to veto the measure should it pass Congress and his attorney general, William Barr, now President Trump’s attorney general, penned a letter denouncing the legislation in 1992.

On the campaign trail that same year, Democratic presidential candidate Bill Clinton promised he would sign the pro-choice legislation should he be elected and it reach his desk. By September 1993, the New York Times reported that FOCA “once the prime legislative goal of people who support the right to an abortion, [had] lost momentum after a determined assault by opponents” and fighting among its supporters “over how sweeping a bill is needed or, indeed, attainable.”

Ultimately, as FactCheck.org explained, “different versions [of the bill] cleared committees in the House and Senate in 1993, the first year of President Clinton’s administration. But even though Democrats then held the White House, a commanding 57 to 43 majority in the Senate and a 254 to 175 majority in the House, the measures died without reaching the floor of either chamber.”

Roughly ten years after attempts to pass FOCA halted, congressional lawmakers revisited the legislation when in 2004 Sen. Barbara Boxer (D-CA) reintroduced the bill in the Senate and Rep. Jerrold Nadler (D-NY) did the same in the House.

The two continued to reintroduce FOCA in at least the next two sessions of Congress, and when the 2008 presidential election cycle rolled around, it again became a campaign issue. Barack Obama during a campaign appearance for Planned Parenthood Action Fund that July vowed that he would sign FOCA into law as the “first thing” he would do as president.

Once elected, however, journalist Ed Henry asked Obama during a 2009 interview if, having surpassed the 100-day mark of his presidency without signing the bill, he “still hope[d] that Congress quickly sends you the Freedom of Choice Act so you can sign it.” Though Democrats held a majority in both chambers of Congress, Obama said the bill was “not [his] highest legislative priority. I believe that women should have the right to choose. But I think that the most important thing we can do to tamp down some of the anger surrounding this issue is to focus on those areas that we can agree on. And that’s—that’s where I’m going to focus.”

After Democrats lost their congressional majority to Republicans in the 2010 midterm election, getting Roe codification legislation to Obama’s desk would no longer be an option.

In 2019, abortion rights supporters are again facing the reality that Roe is in jeopardy. With two Trump appointees on the Court and Republican-held state legislatures rushing to enact restrictions designed to challenge the law, federally guaranteeing the right to an abortion is, to many, more important than ever. So it’s no surprise that both congressional Democrats and candidates for the 2020 Democratic nomination are looking for a way to make it happen.

Congressional Democrats in late May introduced the Women’s Health Protection Act (WHPA), bicameral federal legislation that would, according to a press release on the bill, guarantee “a pregnant person’s right to access an abortion—and the right of an abortion provider to deliver these abortion services—free from medically unnecessary restrictions that interfere with a patient’s individual choice or the provider-patient relationship.” The measure has 171 co-sponsors in the House and 42 co-sponsors in the Senate—including several members of the 2020 presidential field such as Sens. Booker, Gillibrand, Harris, Warren, and Bernie Sanders (I-VT).

The latest iteration of the bill, unlike previous versions, explicitly creates “a statutory right to provide abortion services.” Should Roe fall, that would mean abortion rights in many states would be preserved, as the federal law would supersede state-level restrictions on abortion. The bill also “lists several specific restrictions on abortion that states would not be allowed to enact or enforce if the bill were approved,” Ryan Brown, a spokesperson for Rep. Diana DeGette (D-CO)—one of the bill’s co-sponsors and co-chair of the Congressional Pro-Choice Caucus—told Rewire.News. “Among that list of restrictions that would not be allowed is any law that bans abortion before 20 weeks of pregnancy (which would make most, if not all, of the recently enacted state laws that seek to ban abortion after just six or eight weeks invalid—even if Roe v. Wade is later overturned).”

“Abortion is health care, and health care is a right. The Women’s Health Protection Act (WHPA) will guarantee that right by codifying the protections from Roe into law,” Rep. Judy Chu (D-CA), lead sponsor for the bill, said in a statement to Rewire.News. “For the first time, this law will affirm a patient’s right to access and a doctor’s right to provide abortion care, meaning no state can implement a non-medical restriction. As states like Louisiana, Missouri, Ohio, Alabama, and more race to strip away our rights and attack women’s health care, we need the ability to fight back. That is WHPA.”

But passing federal legislation to codify Roe would require support in both chambers of Congress—only one of which Democrats currently hold —at least 60 votes in the Senate, and well as the White House. And even if it were successful, the legislation would be open to legal challenges and repeal should power shift back to the hands of Republicans.

As Matt Ford recently wrote for the New Republic, federal codification of Roe “would also require the assent of the courts, and it’s far from clear that the conservative justices on the top court today would uphold it.” According to Ford, if states moved to challenge a federal law on the matter, then the higher Court’s justices who “are serious about curtailing abortion access in the United States, they might find it easy to strike down the law as an abuse of Congress’ legislative power.”

“In that scenario, liberals might feel justified in taking more aggressive steps, like changing the court’s ideological composition by packing it with additional liberal justices. Or they will have to play the long game, as the conservative legal movement has been doing for decades, by imposing a litmus test on all judicial nominees.”

Abortion Should Be ‘Part of the Larger Puzzle’ for 2020 Candidates

When it comes to what a 2020 presidential platform addressing reproductive rights and justice should encompass, Lopez, the All* Above All co-director, said, “we obviously need to look beyond Roe because I think we can see Roe kind of crashing down around us.”

“We want candidates to talk about what a post-Roe world will look like,” Lopez continued. “How are people seeking abortions able to get abortions that are safe, accessible, and affordable? We want to see, for example, health-care plans. A lot of folks are talking about ‘Medicare for All’ or other versions of health-care reform. Any of those plans have to include coverage or care for the full range of services from prenatal care to abortion care. So I think that is one area where folks are already having those conversations.”

“We also have to repeal Hyde because frankly, if people accessing abortion can get to somewhere, they’re lucky enough to actually find a clinic who will see them, if they can’t pay for [abortion care] it makes it meaningless,” Lopez said.

Abolfazli, the National Women’s Law Center’s director of federal reproductive rights, when asked what a good platform on these issues should include, noted that federal efforts to protect abortion rights from anti-choice lawmakers and judges should be part of a larger intersectional agenda.

“This is a real crisis,” she said. “So I think connecting that to the broader issues of health care that are happening in our country, the maternal mortality crisis, people being able to get the care in the places they are, there is a problem with lack of care and rural area—there is a line that threads through that. So for us, a platform wouldn’t just be addressing the crisis of reproductive health care but addressing the through line that really crosses from reproductive health care to climate justice, environmental racism, racism, and medical care, etc.”

“We would like somebody to be talking collectively about how abortion fits into it, but be clear that it just fit into it, and it is one piece of a much larger puzzle,” Abolfazli said.