Joe Biden Says He Would Make ‘Roe’ Federal Law. Sort Of.

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Commentary Law and Policy

Joe Biden Says He Would Make ‘Roe’ Federal Law. Sort Of.

Jessica Mason Pieklo

Did Biden announce his support for a strong statutory protection of abortion rights, or something else entirely?

Former Vice President Joe Biden on Sunday said that as president, he’d protect abortion rights by codifying Roe v. Wade into federal law.

But Biden being Biden, he didn’t stop with merely endorsing the popular Democratic policy idea. During Sunday’s Democratic presidential debate with U.S. Sen. Bernie Sanders (I-VT), Biden pledged he would push to codify Roe “as modified by Casey,” referring to the 1992 case Planned Parenthood v. Casey.

That’s the other big U.S. Supreme Court abortion rights case. The one that weakened Roe’s precedent by introducing the undue burden standard. Yes, that Casey. 

Was Biden’s statement about codifying Roe as modified by Casey another Biden gaffe? Or did he mean it? Is it a signal that Biden really hasn’t moved as far to the left on abortion rights as he’d like voters to believe? 

Roe has collapsed in Texas, and that's just the beginning.

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I’ll give Biden the benefit of the doubt and go with gaffe. I don’t think he really meant to announce his support for a watered-down undue burden standard in the same breath as touting support from NARAL. I think Biden, thin on policy to support his presidential run and knowing that support for abortion rights is no longer negotiable within the Democratic Party, misspoke. 

But what if he didn’t misspeak? What if the Democratic frontrunner actually did announce that as president he would push Congress to adopt a statutory version of the constitutional test that started the rollback of abortion rights? What would that mean for abortion rights nationwide?

First things first. Democrats’ call to codify Roe is simply not enough when it comes to protecting abortion rights, even without Biden’s modification. But it’s a place to start. Codifying Roe, if done properly, could be an important tool for reproductive rights advocates in challenging state-level abortion restrictions. That’s because Roe declared abortion a fundamental right and said that laws restricting that right must meet the strict scrutiny constitutional standard. That’s a high threshold for anti-abortion restrictions to have to clear. In that sense, Democrats’ calls to codify Roe are good and should be amplified. And with court cases lined up squarely targeting Roe to be overturned, codifying the decision would be a smart move.

But Casey changed that strict scrutiny threshold to the undue burden test, and with it, opened the door to increasingly obtrusive restrictions on the right to abortion. And to the extent that Biden called for Congress to codify that standard, well, given the conservative capture of the federal courts, that would be a disaster. 

The undue burden standard in Casey granted states wide swaths of power to restrict abortion rights. Conservative judges have, over time, read the undue burden standard to allow all sorts of abortion restrictions, from mandatory ultrasounds to bans on the use of telemedicine in abortion care.

A federal statute codifying that standard would invite more shenanigans from conservative judges eager to roll back abortion rights. Why would those judges bother overturning Roe and risk losing a prime fundraising cudgel for Republicans when they could just declare those restrictions pass muster under a codified Casey? In that scenario, conservatives both successfully render abortion legal in name only while preserving the specter of Roe to fill electoral coffers and drive Republican voter turnout for the foreseeable future. 

Gaffe or no gaffe, this is why Biden should be pressed to clarify his statement from Sunday. The best-case scenario is it gives Biden an opportunity to unequivocally state his full support for abortion rights including a return to a heightened constitutional standard for evaluating restrictions on those rights. The worst-case scenario is that we find out Biden was serious about his intent to push for a Casey codification and diluted protections for abortion rights and that Democrats are about to nominate a man who, despite claims that’s he’s evolved, can’t be trusted when it comes to defending abortion rights.