POLITICS

Joe Biden Reluctantly Backed Abortion Amendment In Bankruptcy Bill Fights

The amendment would have helped protect abortion clinics. Biden supported it ― but wondered why it was necessary.

In 1999, the bankruptcy reform bill that then-Sen. Joe Biden (D-Del.) passionately supported suddenly hit a roadblock.

Sen. Charles Schumer (D-N.Y.) was offering an amendment to ensure that violent anti-abortion protesters wouldn’t be able to declare bankruptcy to escape paying court-ordered fines.

The legislation was not just about abortion. Supporters wanted to tighten rules to make it harder for people to declare bankruptcy. The bill was a top priority for the credit card industry, which spent years pushing for it.

But if the intent was actually about people abusing the system, Schumer’s amendment fit. Randall Terry ― the founder of Operation Rescue, a group that opposes abortion rights ― filed for bankruptcy in 1998, saying, “I will never let a cent of my money be seized to support the killing of the unborn.” He didn’t want to pay court-ordered damages for his confrontational protests at abortion clinics.

“We must make it clear to those who would harm women and doctors that bankruptcy is no escape from accountability,” Schumer said at the time.

Biden wasn’t happy that the bankruptcy fight was suddenly about abortion. He said Schumer was introducing a “poison pill” that could kill the legislation. 

The way “to make sure nothing happens (with legislation) is to say ‘abortion,’” Biden said, according to an April 14, 1999, article by The Associated Press.

In December 2000, he also said the argument that abortion clinics would not be protected without the Schumer amendment “simply was flat out not true.”

A bankruptcy reform bill ― without the abortion provision ― did pass in 2005, one of Biden’s key legislative accomplishments during his 36 years in the Senate. Every single Republican voted for it, as did 18 Democrats. (Twenty-five Democrats voted against it.)

Biden’s role in helping Republicans and the credit card industry pass this legislation has come under increased scrutiny during the 2020 presidential campaign. One of the foremost opponents of the bill, now-Sen. Elizabeth Warren (D-Mass.), is running against him for the Democratic nomination.

The bill was a top lobbying priority for credit card companies, including MBNA, a Delaware-based corporation whose employees were among Biden’s most important campaign donors over the course of his Senate career. MBNA paid consulting fees to Biden’s son Hunter between 2001 and 2005, while his father was at work on the legislation. The company was acquired by Bank of America in 2006 and sold to Lloyds Bank in 2017.

Biden and his team have defended his efforts on the legislation, saying that he worked to provide protections for low-income families. 

“Because it was a certainty that the Republican-controlled Congress and White House would turn the bankruptcy bill into law,” Biden spokesperson Andrew Bates told Vox in May, “then-Senator Biden fought for and won important concessions for middle class families in it, including protecting access to Chapter 7 forgiveness for working people, making child support and alimony the number one priority for debt payments — in front of big banks and credit card companies — and forcing credit card companies to warn borrowers about their interest rates.”

On Tuesday, Warren released a plan on the reforms she’d make to the law, including making it easier for people to file for bankruptcy, addressing racial and gender disparities in the bankruptcy system, and paring back rules that make it harder for people to recover afterward. 

Warren’s plan does not mention Biden by name. But it’s an unmistakable shot at the former vice president, drawing attention to his support for the law and his corporate-friendly record. Biden has touted his ability to work across the aisle, but that willingness to work with Republicans has often resulted in deals that put him at odds with people in his own party.

[The way] to make sure nothing happens [with legislation] is to say ‘abortion.’ Sen. Joe Biden (D-Del.) in 1999

Prior to her Senate career, Warren was an academic who specialized in bankruptcy law. Her research concluded that the leading cause of individual bankruptcy was generally not raw overspending but personal tragedies ― such as the loss of a job, an unexpected medical bill, or divorce ― that disrupted family finances. She believed the bankruptcy legislation would squeeze families who had already been hit by hardship in order to generate revenue for banks and credit card companies. 

Biden, by contrast, billed his legislation as an effort to stop spendthrifts from abusing the bankruptcy system.

To be clear, there were plenty of reasons many Democrats opposed the bankruptcy bill aside from the abortion issue. And President Bill Clinton vetoed it in 2000, spurred largely by opposition from first lady Hillary Clinton

Hillary Clinton, after reading an op-ed by Warren in The New York Times, became concerned that the bill would make it harder for a woman to receive alimony and child support if her former husband filed for bankruptcy. She met with Warren, who helped explain some of the problems, and then went back to the White House and convinced the president to veto the measure.

The abortion issue arose again when the bankruptcy bill came up later, first unsuccessfully in 2001 and then when it passed in 2005. 

Both times, and in 1999, Biden backed the inclusion of the Schumer amendment, which leading women’s rights groups also supported. But he wanted bankruptcy reform passed so badly that he was willing to go forward even if the amendment wasn’t included and seemed disappointed that his Democratic colleagues were making it an issue.

In a Senate Judiciary Committee hearing in February 2001, Biden said that while he supported the goal of the amendment’s supporters, he wanted to make sure “we don’t put ourselves in the position of hyping this beyond what is real.” He predicted the legal system would protect abortion clinics and side with them, even without the amendment. 

A Biden Senate aide involved in passage of the bill said Biden was more involved in trying to get the Schumer language in the legislation. In April 2002, the Senate was involved in conference negotiations and Biden, Schumer and Sen. Orrin Hatch (R-Utah) went to the House to personally engage in negotiations over the clinics language with Rep. Henry Hyde (R-Ill.) to get it into the House bill. (It initially made it into the legislation, but ultimately didn’t get into the final version because a number of House conservatives objected.)

Biden has never been the most enthusiastic ally on abortion issues. He supports a woman’s right to choose but has also sided with abortion rights opponents at times. In June 2019, Biden struggled to articulate his position on the Hyde Amendment, which bans federal funding for most abortions.

It’s something that abortion rights supporters want to see overturned. Biden said he supported the measure, then reversed course and said he didn’t

Sen. Elizabeth Warren (D-Mass.) has made an issue out of former Vice President Joe Biden's support for the bankruptcy bi
Sen. Elizabeth Warren (D-Mass.) has made an issue out of former Vice President Joe Biden's support for the bankruptcy bill. 

Schumer’s amendment did not make it into the final 2005 bill. The language no longer specifically mentioned anti-abortion protesters, but simply debts incurred from “harassment of, intimidation of, interference with, obstruction of, injury to, threat to, or violence against, any person.” Still, most Republicans were skeptical of it because of its history.

“This amendment is for the rule of law. This amendment says you cannot use violence against any group to achieve a political end and then, when you are sued civilly, use the bankruptcy courts for protection. That has never been what the bankruptcy courts were intended to be. It is neutral on terms of what issue,” Schumer said on the Senate floor on March 8, 2005. “Yes, it might be extremists who are against abortion. It also might be extremists on the left side, on the environmental side who burn buildings or houses or cars.”

At the time, Sen. Dianne Feinstein (D-Calif.) said she believed not having the Schumer amendment in the legislation was “a big enough issue on our side” to “stop this bill,” according to Congressional Quarterly on March 12, 2005. 

But in the end, Biden and 17 other Democrats sided with the entire GOP caucus to pass the bankruptcy bill in the Senate ― despite the absence of the Schumer amendment. 

Warren supported the provision. Her presidential campaign said that she believed it should have been in the 2005 bill and that she would support a similar measure in the future.

In 2002, Warren wrote another New York Times op-ed saying that even with the abortion amendment, the legislation was unconscionable and would hurt women trying to collect alimony or child care payments from ex-husbands who declare bankruptcy. Voting for the amendment, but then voting for final passage of the legislation, wasn’t good enough.

“Do politicians like Mr. Biden who support the bankruptcy bill believe they can give credit-card companies the right to elbow out women and children so long as they rally behind an issue like abortion?” she wrote. “The message is unmistakable: On an economic issue that attracts millions of dollars of industry support, women have no real political importance.”

Hillary Clinton, after fighting earlier iterations of the bankruptcy bill, supported it in 2001 as a Democratic senator from New York. She said she was persuaded, in part, by Biden, and she was satisfied with the changes to protect women. By 2005, she opposed the bill again.

Interest rates went down after the bill passed, but bankruptcy filings also declined sharply. And subsequent research ― by Warren and other legal scholars (including Katie Porter, a onetime student of Warren’s who is now a congresswoman from California and supports Warren’s presidential bid) ― determined that the legislation was making it harder for families to weather the Great Recession.

This story has been updated with additional information. 

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