Democratic presidential nominee Joe Biden reaffirmed on Monday that he would work to codify abortion rights into federal law if elected.
“Number one, we don’t know exactly what she will do, though the expectation is that she will move to overrule Roe,” Biden said. “The only responsible response to that would be to pass legislation making Roe the law of the land. That’s what I would do.”
With less than a month until Election Day, abortion rights have emerged as a central issue in the presidential race. Barrett, Trump’s pick to replace Ruth Bader Ginsburg, is a strict Catholic who signed a letter in 2006 calling for the end of “abortion on demand.” Many believe that if seated, she would vote to overturn Roe v. Wade, the landmark 1973 decision establishing the legal right to an abortion.
Biden says on his website that in addition to codifying Roe into federal law, he would “reverse the Trump Administration and states’ all-out assault on women’s right to choose,” and use his Justice Department to stop state laws that violate the constitutional right to an abortion.
Codifying Roe v. Wade is shorthand for passing a law that protects the right to choose. But without additional details, it is unclear exactly what that would look like at the federal level, said Noel León, a lawyer with the National Women’s Law Center. Biden did not immediately respond to a request for more information.
“The Supreme Court has changed the way that the constitutional right to abortion operates over the years, as have lower courts, so it’s really hard to say,” she said. “What we hope he means is to pass explicit protections for people’s reproductive decision-making into law. The law would have to recognize that in order to realize that constitutional right to abortion, you have to be able to access it ― no matter where you live or what your income is.”
Any attempt to codify Roe into law would also need to include efforts to overturn and repeal restrictions at the federal and state level, she added.
“You can’t codify a right to abortion access without recognizing that there are a huge number of federal and state laws that make that right not real for people,” León said.
If Roe is overturned, regulation of abortion would fall to the states. At least 10 states have laws on the books that would make abortion illegal immediately. Other states, such as Illinois and New York, have passed proactive bills protecting to the right to abortion even if Roe is repealed.
As it is, access to abortion differs dramatically depending on where you live.
Between 2011 and 2019, nearly 500 abortion restrictions were enacted in 33 states, according to the Guttmacher Institute, making it exponentially harder for patients to seek timely care. In six states, only one abortion clinic remains.
“Reminder: Roe v. Wade *is* the law of the land and abortion is inaccessible or nearly so for many who want it,” said Robin Marty, author of “Handbook for a Post-Roe America,” in a tweet. “Yes it would be bad if it’s overturned, but promising to codify it isn’t enough. We deserve real policies that will make it available to everyone.”
On Tuesday morning, Trump responded to Biden’s comments by falsely accusing him of supporting abortion until the time of birth.
“Donald Trump is, again, intentionally spreading false information about abortion,” said Alexis McGill Johnson, president of Planned Parenthood Action Fund. “Trump has proven over and over again that he will say anything to stoke fear and rally his base. This disgusting, blatantly false rhetoric is part of his full-on assault on women’s access to care and the right to an abortion.”