Less than an hour after Politico published a leaked draft opinion showing a majority of the Supreme Court is prepared to overturn the right to abortion established in Roe v. Wade, Sen. Bernie Sanders (I-Vt.) called for Congress to codify the landmark decision.
“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” he tweeted Monday night. “And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”
Between late Monday and into early Tuesday, Sanders would be joined by Rep. Alexandria Ocasio-Cortez (D-N.Y.) and a group of vocal Democratic lawmakers and candidates pleading for President Biden to codify Roe — unlikely to occur due to the Senate filibuster and a sharply divided chamber — after the leaked draft opinion of a pending Mississippi case that would effectively ban all abortions after 15 weeks of pregnancy sent shock waves across the country.
“People elected Democrats precisely so we could lead in perilous moments like these — to codify Roe, hold corruption accountable, & have a President who uses his legal authority to break through Congressional gridlock on items from student debt to climate,” Ocasio-Cortez wrote. “It’s high time we do it.”
Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.
— Bernie Sanders (@SenSanders) May 3, 2022
People elected Democrats precisely so we could lead in perilous moments like these- to codify Roe, hold corruption accountable, & have a President who uses his legal authority to break through Congressional gridlock on items from student debt to climate.
It’s high time we do it.
— Alexandria Ocasio-Cortez (@AOC) May 3, 2022
Biden responded in a Tuesday statement by saying that while it’s unclear if the drafted opinion reflected the final decision of the Supreme Court, his administration “will be ready when any ruling is issued” to codify Roe. It could be months before it is clear whether the document will serve as the basis for the court’s decision or if it was just an opening round of negotiations.
“I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned,” he said. Biden added, “At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
But even though Democrats have quickly unified behind the idea to codifying Roe in light of the draft opinion, the efforts at codifying the Supreme Court decision from nearly 50 years ago have fallen short to this point.
The Senate blocked a bill supported by Democrats in February that would have codified Roe into federal law. After the Women’s Health Protection Act was passed in the House, it was defeated in the Senate 46-48, failing to hit the 60 votes needed to overcome a filibuster. It also fell short of the 50 votes needed for passage due to Sen. Joe Manchin III (D-W.Va.) joining Republicans in opposition and the absences of several other Democrats.
The White House has previously endorsed codifying the right to abortion access. In September, the Biden administration responded to Texas’s restrictive abortion law, which bans the procedure as early as six weeks into a pregnancy, by saying that “it has never been more important to codify this constitutional right and to strengthen health-care access for all women, regardless of where they live.” Biden was also among the 2020 Democratic presidential candidates who pledged to codify Roe.
The report from Politico said that after oral arguments Justice Samuel A. Alito Jr., along with Justice Clarence Thomas and all of three of President Donald Trump’s nominees to the court — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — voted to overturn the precedent.
In the draft, Alito reportedly discounts concerns about overruling long-standing precedent, saying that Roe was “egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issues, Roe and Casey have enflamed debate and deepened division.”
“We hold that Roe and Casey must be overruled,” said the document, which Politico said was labeled a draft “Opinion of the Court.” Planned Parenthood v. Casey, decided in 1992, affirmed the abortion right established in Roe. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Drafts of opinions are circulated to try to convince other justices and to serve as a document they can endorse, and language can be strengthened or toned down. The leak could be seen as a calculation to spur the court to move in another direction. There remains no reason to believe that the detailed document Politico said it obtained was illegitimate.
Abortion providers in Southern states with Republican-led legislatures that already enacted restrictive laws have felt dread in the months since the Texas law went into effect. Many states have already passed “trigger bills,” which would almost immediately outlaw all abortions within their borders if Roe is overturned. One particularly significant version of this law passed the legislature in Oklahoma, which already has a trigger ban. Legislators there decided to revise that existing trigger law so that, even if Roe is not completely overturned, a full abortion ban will still take effect.
Democrats on social media joined Sanders and Ocasio-Cortez in calling for Roe to be codified following the leaked draft opinion. Some, including Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Rashida Tlaib (D-Mich.), called for ending the filibuster in hope of protecting “the very people who need access to legal abortion.”
“It is a fundamental right for a woman to make her own health decisions,” Sen. Amy Klobuchar (D-Minn.) tweeted. “We must protect the right to choose and codify Roe v Wade into law.”
With far-right justices poised to overturn Roe, the lives of millions of Americans depend on us.
We must codify the right to an abortion into federal law—even if it means eliminating the filibuster.
We must flip state legislatures.
— Kirsten Gillibrand (@SenGillibrand) May 3, 2022
And states like NY must open our doors. https://t.co/Eg2iZLxJNJ
It is a fundamental right for a woman to make her own health decisions. We must protect the right to choose and codify Roe v Wade into law.
— Amy Klobuchar (@amyklobuchar) May 3, 2022
They were joined by Sen. Tim Kaine (D-Va.), who urged Congress to pass the Women’s Health Protection Act “to codify the protections in Roe v. Wade ASAP.” Other Democratic candidates nationwide, from Pennsylvania Lt. Gov. John Fetterman, who is running for the Senate, to Nina Turner, who is running for a House seat in Ohio, stressed that Democrats “cannot afford to wait” to codify Roe.
“Protecting abortion rights is not a midterm pitch — Democrats have the power now,” Turner said, urging elected leaders to vote on codifying Roe and getting rid of the filibuster. “We have the majority in Congress and we have the White House.”
As Biden and other Democratic lawmakers and candidates rallied around codifying Roe, some of the vitriol online from liberals and Democrats has been directed at voters of Jill Stein, the Green Party’s presidential nominee in 2016. Critics have accused Stein and her voters in helping to elect Trump — and eventually giving the one-term president three Supreme Court picks that shifted the balance of the high court and potentially put Roe in danger.
Stein fired back on Tuesday morning at critics blaming her candidacy for Roe potentially being struck down, noting that Democrats had long promised to codify the 1973 decision without luck.
“Next time you blame progressives & 3rd parties for your loses, remember Dems had decades to codify Roe into law,” she tweeted.
Robert Barnes and Mike DeBonis contributed to this report.
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Can Roe v. Wade be codified into law to protect abortion access? Biden, Democrats think so. - The Washington Post
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