What Does It Mean To Codify Roe V Wade

The landmark 1973 Roe v. Wade decision established a woman's constitutional right to an abortion, a right that has been challenged and eroded over the years. The phrase "codify Roe v. Wade" has become a rallying cry for abortion rights advocates, particularly in the wake of the Supreme Court's decision to overturn Roe in Dobbs v. Jackson Women's Health Organization. But what does it truly mean to codify Roe, and what would the implications be?

Codifying Roe v. Wade essentially means enshrining the principles of that decision into federal law. Roe recognized a woman's fundamental right to privacy under the Fourteenth Amendment, which protects her liberty to make decisions about her body and reproductive health. It established a trimester framework, granting states more regulatory power over abortion as the pregnancy progressed. Codification seeks to solidify these protections, preventing states from enacting laws that unduly restrict or ban abortion.

The Context of Roe v. Wade

Roe v. Wade was a watershed moment in American legal history. Prior to Roe, abortion laws varied widely across the United States. Some states banned abortion altogether, while others had more permissive regulations. The case arose from Texas, where abortion was illegal except to save a woman's life. Norma McCorvey, using the pseudonym "Jane Roe," challenged the Texas law, arguing that it violated her constitutional rights.

The Supreme Court, in a 7-2 decision, sided with Roe. Justice Harry Blackmun, writing for the majority, recognized a woman's right to an abortion, grounded in the right to privacy under the Fourteenth Amendment. The Court balanced this right against the state's interests in protecting potential life and maternal health. The trimester framework was established to guide state regulation:

• First Trimester: States could not prohibit abortions.
• Second Trimester: States could regulate abortions to protect maternal health.
• Third Trimester: States could regulate or even prohibit abortions, except when necessary to save the life or health of the mother.

Roe v. Wade faced immediate and sustained opposition. Anti-abortion activists and organizations argued that abortion was morally wrong and that the fetus had a right to life. This opposition led to decades of legal challenges aimed at chipping away at Roe's protections.

Why Codify Roe v. Wade?

The primary reason for codifying Roe v. Wade is to protect abortion rights in the face of legal and political challenges. The overturning of Roe in Dobbs v. Jackson Women's Health Organization in 2022 eliminated the federal constitutional right to abortion, leaving the issue to be decided by individual states. This has resulted in a patchwork of laws across the country, with some states banning or severely restricting abortion, while others protect abortion access.

Codification would establish a national standard, ensuring that women in all states have the right to an abortion, regardless of where they live. This would provide greater certainty and stability for both individuals seeking abortion care and healthcare providers.

The Potential Benefits of Codification

• National Standard: Codification would create a uniform national standard for abortion access, eliminating the current state-by-state variation.
• Protection Against State Bans: A federal law codifying Roe would prevent states from enacting outright bans or excessively restrictive laws that undermine abortion access.
• Legal Clarity: Codification would provide legal clarity and reduce the potential for future legal challenges to abortion rights.
• Protection for Healthcare Providers: Healthcare providers would have greater legal certainty in providing abortion care, without fear of criminal prosecution or civil liability.
• Public Health Benefits: Ensuring access to abortion care can improve women's health outcomes and reduce unintended pregnancies.

The Challenges to Codification

Despite the potential benefits, codifying Roe v. Wade faces significant challenges. The most significant obstacle is political opposition. Abortion remains a deeply divisive issue in the United States, with strong opposition from religious conservatives and anti-abortion activists.

Political Opposition

• Republican Opposition: The Republican Party generally opposes abortion rights and has consistently opposed efforts to codify Roe. Republicans control the House of Representatives, making it difficult for any pro-choice legislation to advance.
• Divisions in the Democratic Party: While the Democratic Party generally supports abortion rights, there are divisions within the party on the extent to which abortion should be protected. Some Democrats support more moderate approaches, such as codifying Roe while allowing for some state regulations.
• Filibuster in the Senate: Even if a bill to codify Roe were to pass the House, it would likely face a filibuster in the Senate. Overcoming a filibuster requires 60 votes, which is unlikely given the current composition of the Senate.

Legal and Constitutional Hurdles

• Scope of Congressional Power: Some legal scholars argue that Congress may lack the constitutional authority to enact a broad law codifying Roe. The Constitution grants Congress specific powers, and it is not clear whether Congress has the power to regulate abortion directly.
• Religious Freedom Concerns: Some argue that codifying Roe could infringe on the religious freedom of individuals and institutions that oppose abortion. The Religious Freedom Restoration Act (RFRA) could be used to challenge a federal law codifying Roe.
• Undue Burden Standard: The Supreme Court has held that states cannot place an "undue burden" on a woman's right to an abortion. Codifying Roe would need to address the undue burden standard and define what constitutes an impermissible restriction on abortion access.

Potential Approaches to Codification

There are several potential approaches to codifying Roe v. Wade, each with its own advantages and disadvantages.

Congressional Legislation

• The Women's Health Protection Act: This bill, which has been introduced in Congress several times, would prohibit states from enacting laws that restrict abortion access more than is medically necessary. It would effectively codify the principles of Roe v. Wade and Planned Parenthood v. Casey.
• The Freedom of Choice Act: This bill, which was introduced in the 1990s, would establish a statutory right to abortion. It would be a more direct approach to codification than the Women's Health Protection Act.
• Federal Funding for Abortion: Congress could also act to ensure that abortion is accessible by providing federal funding for abortion services. This could be done by repealing the Hyde Amendment, which prohibits the use of federal funds for most abortions.

Constitutional Amendment

• An Equal Rights Amendment for Abortion: Some have proposed amending the Constitution to explicitly protect abortion rights. This would provide the strongest possible protection for abortion access, but it would be difficult to achieve, as it requires ratification by three-fourths of the states.

Executive Action

• Executive Orders: The President could issue executive orders to protect abortion access, such as directing federal agencies to ensure that abortion is available to federal employees and beneficiaries of federal programs. However, executive orders can be easily reversed by subsequent presidents.
• Department of Justice Action: The Department of Justice could challenge state laws that restrict abortion access, arguing that they violate federal law or the Constitution.

The Role of Planned Parenthood v. Casey

Any discussion of codifying Roe v. Wade must also consider the impact of Planned Parenthood v. Casey, a 1992 Supreme Court decision that reaffirmed Roe but also introduced the "undue burden" standard. Casey replaced Roe's trimester framework with a focus on whether state regulations place a substantial obstacle in the path of a woman seeking an abortion before viability.

Codification could take different approaches to the Casey standard:

• Codify Roe and Casey: This would involve enshrining both decisions into federal law, including the undue burden standard. This approach would provide a more moderate approach to abortion rights, allowing for some state regulations.
• Codify Roe and Reject Casey: This would involve codifying the principles of Roe while rejecting the undue burden standard of Casey. This approach would provide stronger protection for abortion rights, limiting the ability of states to regulate abortion.
• Create a New Standard: Congress could create a new standard for evaluating state abortion regulations, balancing the interests of the woman, the state, and the potential life.

The Future of Abortion Rights

The future of abortion rights in the United States is uncertain. The overturning of Roe v. Wade has created a highly polarized landscape, with abortion access varying widely depending on where a person lives. Codifying Roe would provide a much-needed national standard, but it faces significant political and legal challenges.

The Impact of the Dobbs Decision

The Dobbs v. Jackson Women's Health Organization decision has had a profound impact on abortion access in the United States. As of late 2023, several states have banned or severely restricted abortion, and more are expected to follow suit. This has created a situation where women in some states have virtually no access to abortion care.

The Dobbs decision has also raised concerns about the future of other constitutional rights. Justice Clarence Thomas, in his concurring opinion, suggested that the Court should reconsider other substantive due process precedents, including Griswold v. Connecticut (right to contraception), Lawrence v. Texas (right to same-sex intimacy), and Obergefell v. Hodges (right to same-sex marriage).

State-Level Efforts to Protect Abortion Rights

In the absence of federal action, some states have taken steps to protect abortion rights. These efforts include:

• State Constitutional Amendments: Some states have amended their constitutions to explicitly protect abortion rights.
• Shield Laws: Some states have enacted shield laws to protect healthcare providers and individuals who provide or seek abortion care from prosecution or extradition.
• Funding for Abortion Services: Some states have increased funding for abortion services to ensure that abortion is accessible to low-income women.

The Role of Public Opinion

Public opinion on abortion is complex and nuanced. While a majority of Americans support abortion rights in at least some circumstances, there is also significant opposition to abortion, particularly among religious conservatives. Public opinion could play a role in shaping the future of abortion rights, as politicians respond to the views of their constituents.

Conclusion

Codifying Roe v. Wade would be a significant step toward protecting abortion rights in the United States. It would establish a national standard, preventing states from enacting outright bans or excessively restrictive laws. However, codification faces significant political and legal challenges. The future of abortion rights in the United States remains uncertain, but the debate over codifying Roe will likely continue for years to come. The legal, political, and social landscape surrounding abortion is constantly evolving, making it essential to stay informed and engaged in the conversation. The path forward will require careful consideration of the various legal and constitutional hurdles, as well as a commitment to finding common ground on this deeply divisive issue. How do you think the ongoing debate surrounding abortion rights will ultimately shape the future of reproductive healthcare in America?