President Biden Pledges to Codify Roe with Bill that Goes Far Beyond Roe

 

In what was billed as a major address yesterday by the White House, President Joe Biden declared that, if the Democrats prevail in the midterm elections, “here’s the promise I make to you and the American people: The first bill I will send to the Congress will be to codify Roe v. Wade. And when Congress passes it, I’ll sign it in January, 50 years after Roe was first decided the law of the land.” As previously discussed, the bill being referenced by the President and Democrats is not a codification of Roe v. Wade, but rather a significant expansion of the precedent. Biden also returned to his claim that the right can be based entirely on the Ninth Amendment.

The Women’s Health Protection Act (WHPA) is routinely described in the media as a “codification of Roe,” repeating the false claim by the White House and many Democratic sponsors. It is in fact what many pro-choice advocates have always wanted Roe to be but have been unsuccessful in establishing through the court system.

The Democrats could have simply sought the codification of Roe but instead loaded the WHPA with a wishlist of pro-choice provisions. The WHPA would dramatically expand Roe and its successor case, Planned Parenthood of Southeastern Pennsylvania v. Casey. It seeks to accomplish legislatively what could not be accomplished judicially for decades.

The bill declares the “violent legacy” of “restrictions on reproductive health, including abortion … [that] perpetuate systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism.”

It would wipe away the precedent following Roe where states did impose legislative conditions and limitations on abortions within the constitutional framework laid out by the Court. Since 1973, states have used that precedent to enact hundreds of laws on abortion.

There are legitimate objections to some of these laws. However, if the President and Congress are going to preempt state laws, they should be honest with voters that this is an expansion (rather than a codification) of the status quo of Roe.

The precedent under Roe and its successor cases bar states from imposing an undue burden on the right to an abortion, or laws that have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” That can be stated in a couple lines. But the WHPA would superficially track constitutional language while adopting other undefined or sweeping terms.

It bars any limitation or requirement that “expressly, effectively, implicitly, or as implemented singles out” and “impedes access to” abortion. Any state law would need to show — by clear and convincing evidence — that it “significantly advances the safety of abortion services or the health of patients,” and that such safety “cannot be advanced by a less restrictive alternative measure.”

Conversely, a law can “impede” abortion rights under seven broad standards — including any conditions that are “reasonably likely to directly or indirectly increase the cost of providing … or obtaining abortion services (including costs associated with travel, childcare, or time off work),” that “deters some patients.” It also impedes the right if it causes “a trip to the offices of a health care provider that would not otherwise be required.”

Under the WHPA, no law could countermand a health-care provider who believes “continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.” The term “health” is not defined and such terms are required to be “liberally construed” under the law. The law could be read as preempting certain late term abortion laws and other limits.

The WHPA could make it more difficult to establish waiting periods under current state laws. Laws requiring the involvement of licensed physicians could be struck down, too, since the key “health care provider” definition includes a “certified nurse-midwife, nurse practitioner, and physician assistant.”

Again, these are important issues that are worthy of debate. Indeed, they are the types of definitions, procedures and standards that have resulted in different approaches among the states under the current post-Roe precedent — laws that could be preempted under the WHPA.

President Biden also returned to the claim that the Constitution’s Ninth Amendment contains a “right to privacy.” He explained, “There’s a thing called the Ninth Amendment that says there’s a right to privacy. That’s how it was interpreted back then.”

The Court has expressly rejected this rationale and any law based on this claim would likely face the same result before the current Court.

The Ninth Amendment of the U.S. Constitution states “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Biden previously made the same claim during a NATO press conference on June 30. He added:

“I have written, way back, a number of law review articles about the Ninth Amendment and the – and the Fourteenth Amendment and why that privacy is considered as part of a constitutional guarantee.”

Even the Washington Post declared that claim to be false. It awarded two “Pinocchios” though it is not clear what it takes to get more “Pinocchios” in this circumstance.

Nevertheless, the Post tried to be as gentle as possible, noting that “as we’ve already documented, the president tends to embellish the factual record of his past at times.”  This includes his claim of being arrested during civil rights protests and also that he was arrested in his effort to see Nelson Mandela.

On this occasion, the Post found no such law review articles written by Biden, as repeatedly claimed in public.

As for the Ninth Amendment, it was meant by James Madison as a way to assure anti-Federalists and others that, by listing certain rights, the Bill of Rights was not confining rights to those listed.

However, the Court has rejected the type of argument repeatedly eluded to by the President.  Such rights must be established as deeply rooted in our history. In the recent Dodd decision, the Court expressly rejected abortion as one of those rights.

101 thoughts on “President Biden Pledges to Codify Roe with Bill that Goes Far Beyond Roe”

  1. “I didn’t really expect Democrats to go with, ‘You know, it’s cheaper to feed your family if you kill a few of them’ as a closing argument, yet here we are.”
    – Dan McLaughlin

    in response to Stacey Abrams:

    Right now we are walking away so often from the real issues that people care about. Abortion is an economic issue. It’s been reduced to this idea of a culture war. But for women in Georgia, this is very much a question of whether they’re going to end up in poverty in the next five years because women who are forced to carry unwanted pregnancies end up within poverty. They’re four times more likely to be impoverished in five years.
    – Stacey “There Is No Such Thing as a Heartbeat at 6 Weeks” Abrams

    Q: If Herschel Walker has cognitive issues due to repeated head injuries from football, what is Stacey’s excuse?

    1. In watching Walker I saw no evidence of cognative issues – in fact he seemed quite able to comprehend issues and to respond rapidly and creatively.

      What I saw with Walker is someone whose language was effected by education and culture.

      I would also note Walker was a Running back – while they do take hits – including to the head.
      The primary group with problems are linemen who are getting pounded in the head EVERY play.

  2. Forgetting the legal issue, the Dems through demented Joe are making a promise that won’t work right before election time to try to save their control of the House. They, and the right does the same, will say anything to sway the public. Then they will claim that at least they tried knowing their promise is on big fat lie. The problem is this type of tactic does work to a degree. People in this country are that stupid.

  3. OT

    WWIII? Putin annexes parts of Ukraine in order to claim that Ukraine and NATO have attacked Russian soil.

    Putin reprises “Crazy Abe” Lincoln.

    Putin is an inhuman dictator who illegally conducted military operations in a sovereign foreign nation, brutally oppressed political opposition, illegally annexed territories in Ukraine, illegally declared martial law, and threatens deployment of nuclear weapons.

    Lincoln was a grievous dictator who conducted unconstitutional military operations in a sovereign foreign nation, denied constitutional secession, started the unconstitutional Civil War, brutally oppressed political opposition through the suspension of habeas corpus, and improperly and unconstitutionally amended the Constitution for the benefit of non-citizens to whom the law denied naturalization.
    ____________________

    “PUTIN ILLEGALLY ANNEXES TERRITORIES IN UKRAINE, IN SPITE OF GLOBAL OPPOSITION”

    MOSCOW — Russian President Vladimir Putin has moved to formally annex four Ukrainian territories, signing what he calls “accession treaties” that world powers refuse to recognize. It’s Putin’s latest attempt to redraw the map of Europe at Ukraine’s expense.

    “The people made their choice,” said Putin in a signing ceremony at the Kremlin’s St. George hall. “And that choice won’t be betrayed” by Russia, he said.

    – National Public Radio
    ___________________

    The illicit legacies of Putin and Lincoln must be abrogated.

      1. Weird – I totally agree.

        Both Putin and Lincoln functioned of their extreme eccentricities and weirdness.

        They killed legions of people with no imminent and compelling rationale, and wanton disregard.

        Two weird and egomaniacal lunatics who stole power and ran wild with it.

        Thanks for reading.

    1. Off topic much? But if you wajt to talk dictatorships then check what the Ukrainian government puppeteer from the West for years have been up to.

      Why stop at Lincoln when the last several presidents including this current demented horse’s ass have done against what’s supposed to be a sovereign republic

      1. Attentive readers find OT to mean, precisely, off topic. Thank you so much.

        You’re making progress; the entire communist American welfare state is unconstitutional and must have been immediately and contemporaneously struck down by Judicial Review of the Supreme Court.

        American freedom persisted for 71 years until “Crazy Abe” Lincoln nullified it, stole power that he absolutely did not have, and initiated the incremental implementation of the principles of communism in America at the behest of Karl Marx who congratulated and commended Lincoln as the “…earnest of the epoch…” leading America toward the “…RECONSTRUCTION of a social world.”

        https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm

        America should reflect the intent of the Founders and the “manifest tenor” of the Constitution and Bill of Rights to this day.

        On January 1, 1863, the law required compassionate repatriation for the benefit of the participants, that they find a sense of nationhood and self esteem in their own colony/nation, which they were denied.

        The current problems related to the inability of illegal immigrants and invaders to assimilate could not persist under the fundamental and immigration law of the Founders.

        America should be a constitutional, patriotic, cohesive, homogeneous and free nation to this day.

        It is not.

        The legislative and executive branches were expected to deviate and “overreach.”

        The singular American failure has been and remains the Supreme Court, which swore an oath to support the clear and obvious, meaning and intent of the Constitution.

        1. Get rid of the 17th amendment also. I still don’t know why the States gave up their rights on that one.

          1. Everything Lincoln did was unconstitutional. Lincoln had no legal basis to deny secession, seize power, impose unconstitutional dictatorship and ram through not one, but three normally impossible-to-ratify amendments in an environment of brutal, post-war military occupation and oppression. What Lincoln did was unconstitutional, including his three unconstitutional amendments.

            The 17th should be abrogated but more importantly, the power to entitle voters must be returned to states by abrogation of the “Reconstruction Amendments” and vote restrictions must be pervasive and severe.

            Whom does China allow to vote?

  4. I am still waiting for any leftist poster on this blog or leftist candidate for office to say that abortion should be limited at anytime in a pregnancy. They present no limitations even when the light shines on the crown of the babies head. They respond in full throated choir that crushing that crown should be left up to the women. If you’ve ever been a father watching your son or your daughter being born such a thought would turn your stomach sour and the distinct taste of bile would be on your tongue. That is if you had a heart beating in your chest.

      1. If you weren’t so dense you’d realize Roe had a cutoff at viability (23 weeks).

        Speaking of dense, post Roe, 23 weeks remained the cutoff throughout the United States, True or False?

        The obvious answer is False, but you can’t say that because that would actually make your comment the dense one.

      2. Roe does not have a cuttoff. Roe divides the issue of the states authority with regard to abortion into 3 Trimesters.
        In the first the state has little power, in the 2nd more, in the 3rd great power.

        But Roe has not actually been “the law of the land” for some time. Casey fundimentally changed Roe, and switched to a viability standard.
        Which is a moving target.

  5. Well good for good ole Joe. He never wanted a bill for fifty years but he wants one now. He must have been asleep in kindergarten when they covered this subject. https://m.youtube.com/watch?v=nOrb0xcZQS4. After fifty years he finally wants to use the system as it was designed. When the Supreme Court smacks down his legislation he will be declaring the necessity to pack the court. When it comes to Joe telling the future is easier than easy.

  6. SCOTUS has proven an inability to protect the civil rights of its citizen base and clearly needs guidance to align its rulings to be not so politically motivated and a product of dark money working behind the scenes.

    And trump left seen stains on the dress of a woman he raped in a department store and is being deposed as we speak on his actions.

  7. NATURAL AND GOD-GIVEN

    “Most scholars today believe that Jefferson derived the most famous ideas in the Declaration of Independence from the writings of English philosopher John Locke. Locke wrote his Second Treatise of Government in 1689 at the time of England’s Glorious Revolution, which overthrew the rule of James II.”

    “Locke wrote that all individuals are equal in the sense that they are born with certain ‘inalienable’ natural rights. That is, rights that are God-given and can never be taken or even given away. Among these fundamental natural rights, Locke said, are ‘life, liberty, and property.'”

    – Continental Rights Foundation
    __________________________

    The 9th Amendment addresses the “natural” and “God-given” rights referenced by John Locke.

    Natural and God-given rights existed before government was created.

    It is natural and an intent of God for mothers to protect and nurture their children at all stages of development.

    Homicide, in the case of zygote, embryo or fetus, cannot be considered natural or God-given as it is unnatural and a sin.

    After 24-hours of fertilization, a human being begins development, which, if not interrupted, will continue for approximately 78 years.

    A particular point in the human development cycle is not a rationale for termination.

    Abortion of a human being after fertilization is homicide.
    ____________________________________________

    9th Amendment

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  8. I am falling over backwards due to actually agreeing with Joey Biden. He says that if the Democrats win in the midterms he will ask the legislature to codify abortion. He admits that such a law would have to be agreed upon by the representatives of the people rather than the Supreme Court. It seems that he’s a little late to the party. He was okay with not letting the people have a vote on the matter for fifty years. He qualifies what he would do with his “If the Democrats win the midterms.” If it’s so important why not introduce his bill even if the Democrats lose. He is more concerned with how it would look for the Democratic Party if his legislation is rejected by the peoples representatives. If it’s right it’s right regardless of the party in power. One would think that he would fall on his sword in a just cause but instead he’s all for the party all of the time. His efforts are made only if he finds it expedient not if he finds it moral.

  9. 1. From “Biden-Sanders Manifesto”, p. 35: “Democrats oppose and will fight to overturn federal and state laws that create barriers to women’s reproductive rights, including repealing the Hyde Amendment [1], and will work to protect and codify Roe v. Wade.”

    2. SCOTUS declined to block enforcement of Texas S.B. 8 law that prohibits abortions after six weeks of pregnancy, on 9/1/21. In response, President Biden said he is launching a whole of government effort.

    3. It’s much easier to back off the nomination of Chad Meredith to a Federal District Judge in Eastern Kentucky than to pass WHPA. President Biden handlers might have overlooked that whatever “first bill” he will send to Congress get the stamp from every D Rep.:
    * Especially in TX & GA, DNC has established a very successful race-based election engineering via the African Methodist Episcopal Church network. AME is pro-life and opposes elective abortions.
    * The Roman Catholic Church, the largest Christian group in the world with about one billion members, is pro-life in absolutes. On 10/29/21, President Biden, a Catholic, thanked His Holiness Pope Francis for his advocacy for the world’s poor and those suffering from hunger, conflict, and persecution. “Catholic for Democrats” not-for-profit national organization, based in Boston, MA supported Presidents Obama & Biden in them bid. The Conference of Catholic US Bishops (“Faithful Citizenship”) on abortion: “”Our Conference supports laws and policies to protect human life to the maximum degree possible, including constitutional protection for the unborn and legislative efforts to end abortion and euthanasia.”
    * There are competitive districts with a substantial voter base who have strong reservations against late abortion. [2]

    4. Kansas VTB amendment, supported from various churches and voted down by a health 59-41 margin, made more harm than good.

    5. Three previous columns worth reading:

    12/13/21: Beware of Plan Bs: The White House Push to ‘Codify Roe’ Goes Far Beyond the Status Quo
    07/0722: Harvard Poll: 72 Percent Oppose Abortion Beyond 15-Week
    09/26/22: Was Overturning Roe a “Blessing”? Only if Democrats Can Avoid the Details of the Right to Abortion

    [1] In effect since 1980, a legislative provision barring the use of federal funds to pay for abortion except to save the life of the woman, or if the pregnancy arises from incest or rape.
    [2] In volatile times anything can happen: Michael Bloomberg and Charlie Christ are causalities if compare it with Tulsi Gabbard, the progressive star and Bernie Sanders supporter from six years talks now like an ultra MAGA born Republican. Will Kyrsten Synema & Joe Manchin follow her steps?

  10. Meanwhile, in real political news, Turley fails to mention that a jury acquitted Dashenko, who was charged with lying to the FBI–a Durham prosecution demanded by Trump to defend him against Russian collusion charges. Why not discuss the politics behind this?

    1. Meanwhile, the Just Us System….is working as ‘they’ intend it to ‘work’….ie, for them, not us.

    2. Let’s watch as the Just Us system throws the book at Steve Bannon….while they let every other lawbreaking Democrat criminal walk.

  11. Another day, another instance of Democrats circumventing the Constitution, knowing full well it will be struck down in the future in court, hoping that the plebes don’t notice before then, so that they can spin it in the future as some kind of manufactured resistance to doing the right thing. Forgive me for saying it, but the Dem constituency are idiots if they believe a word of any of it. Seriously: how asleep are you people?

    I am tired of all of it. Blow up the Dem party already. You are very, very tiresome to the rest of us that actually think and act *legitimately* liberally in the world with no agenda. If desperate were a smell, it would be called ‘Biden’ and the 21st century Democratic party would be the offshoots. We aren’t falling for it anymore, Dems, and most of us are not wealthy elites with the Clintons on speed dial. 🙄 Give it up already. Unless you are prepared to literally, in a fascist maneuver, take over our government, then accept the fact that the people are not on your side. At all. Not even a little bit. Turns out oligarchy and globalism are not so popular with the vast majority of people on earth. Your money means nothing. Go away. We never needed you, and you would be the first, due to your inadequate life skills, to fall on their faces in the scenario you are hinting toward more and more every single day.

  12. To me it is surprising that Uncle Joe [not to be confused with Russia’s “Uncle Joe”] is willing to sign a bill codifying Roe v. Wade. Why not just sign an Executive Order and be done with it?

  13. If the 10th Amendment gives the abortion issue to the states, how can Congress transfer that right to the Federal government without an Amendment to the Constitution??

    1. The WHPA bill that JT is discussing (not necessarily the same as the one that Biden says he will propose) cites congressional authority for the legislation under the commerce clause, 14th amendment enforcement provision, and the necessary and proper clause. It’s unclear whether the Supreme Court under existing precedent and recent new members would find this bill and other abortion related bills (Graham and Collins separately) constitutional.

  14. “Embellish the factual record” — that’s what Democrats call “lying through your teeth” when it’s a Democrat telling the lies.

  15. There is no sense even debating this, the lines are drawn sharply. It is now just a matter as to whether the adults take back control of this nation and preserve it as the founding fathers created it OR it falls completely – within the next 2 national elections – to the ignorant, infantile ideologues who wish to destroy it in toto.

  16. I must’ve slept through civics class in school.
    I was led to believe that legislative ‘bills’ come from Congress, to then be signed off on or vetoed by the president.
    When Biden says I will send a bill — really?
    Is this just another Biden gaffe du jour of which there are far too many to count?

    1. No gaffe on this one as the President has the constitutional authority to recommend measures/bills for Congress to consider under section 3 of article 2.

  17. The 9th amendment fails to mention privacy. It just assures the people they have the rights they retain. To retain rights, the people must take action…through their elected representatives. Democrats never put any effort to ‘retain’ what they demand. But of course positions rests firmly on Democrat strategy to legislate by using the judiciary. Many have mentioned the fact Democrats have had 5 years to codify their desires, but never lifted a finger to make it happen. The reason is clear. Democrats only use social issues to divide people into tribes, for political reasons. The political cudgel of abortion, is handy to swing at conservatives. If Dems eliminated the issue, they loose a cudgel.

    But the issue is not abortion. It is protecting life. The dems have succeeded in defining abortion as a women’s medical health issue. When in actuality, that medical procedure kills a baby. Protecting the life of a baby is well within the power of State Legislatures.

    1. “The dems have succeeded in defining abortion as a women’s medical health issue”

      I agree. I always ask when I hear that this is a health issue, “what exactly are we tryin to cure?”. Preganncy is not a disease. Abortion is purely a moral decision and has nothing to do with you doctor. Yes there are a few medical emergency reasons out of the millions of killed, but this is a very small number.

  18. Professor Turley,

    Did Biden state he would “codify Roe” or that he would “codify Roe and its progeny?” The undue burden standard from Casey and the additional restrictions that you note were all decided by successor cases, which SCOTUS has now wiped away. Biden didn’t say he would restore the status quo, only that he would codify the right to an abortion under Roe. To equate this with dishonesty from Joe is to put words in his mouth, which he did not utter.

    Relatedly, Biden is correct in stating that “back then” – meaning back when the Court decided Roe – the Ninth Amendment was interpreted to form the “penumbras” for the right to privacy (along with the First, Third and and Fourth Amendments) under Griswold’s majority holding. Roe itself stated: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.” In more recent cases, the Fourteenth Amendment argument has been used more frequently, but his original claim about the interpretation of the Ninth Amendment “back then” is not unfounded.

    This discussion illuminates just how significant overturning Roe v. Wade (and its progeny!) was because the Court’s consensus regarding substantive due process for over 50 years has been turned upside down.

    If you are going to call out Biden for lies – for which there are many – stick to things he actually said (like the law review lie). Please don’t make stuff up as that would be…. a lie?

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