It is finally settled that Joseph Biden will become president of the United States on January 20 at about noon. His party, in its presidential platform, has promised to “codify the right to reproductive freedom.” At an October campaign event, Biden made the promise his own. Asked what he would do about abortion in light of Amy Coney Barrett’s nomination to the Supreme Court, Biden noted the “expectation” that Barrett would vote to overrule Roe. He then declared: “The only responsible response to that would be to pass legislation making Roe the law of the land. That’s what I would do.”
Democrats control the House of Representatives. As vice president, Kamala Harris will possess the tie-breaking vote in a Senate equally divided between the parties. In 2019, she co-sponsored the proposed Women’s Health Protection Act, which would have codified Roe. At least a couple of Republican senators (Susan Collins, Lisa Murkowski) are reasonably likely to vote to “codify” Roe.
The question is not if but when Congress will consider a bill making abortion on demand up until the third trimester—and possibly throughout pregnancy—the law of the land. When that time comes, the bill will probably become law. It would mean that even if the Supreme Court overruled Roe v. Wade, abortion would be just as available the day after the decision as it was the day before.
Could it really end up making no difference whether the Supreme Court finally overturns Roe v. Wade? Unfortunately, yes—unless the Court’s conservatives alter what they mean by “reversing” Roe. This would require a significant change in their constitutionalism—more specifically, in their understanding of how moral truths intersect with their job of faithfully applying the Constitution.
As things now stand, when constitutional conservatives speak of “reversing” Roe, they mean getting the Court out of the abortion fray. They have long maintained that the Constitution is silent about abortion: Neither a woman’s right to legal abortion nor an unborn child’s right to life is to be found there. This means that, as Justice Scalia wrote in 1992 in Planned Parenthood v. Casey (for himself, for Justice Thomas, and for the two dissenters in Roe, White and Rehnquist), “[t]he states may, if they wish, permit abortion on demand. . . . But the Constitution does not require them to do so….”
The most recent example [of conservatives’ approach to abortion] is Chief Justice Roberts’s concurring opinion in last summer’s June Medical Services case. The issue there was the constitutionality of a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital. Roberts argued that the task at hand was “in essence to weigh the State’s interests in ‘protecting the potentiality of human life’ and the health of the woman, on the one hand, against the woman’s liberty interest in defining her ‘own concept of existence, of meaning, of the universe, and of the mystery of human life’ on the other.” Roberts asserted that there “is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were; [a]ttempting to do so would be like ‘judging whether a particular line is longer than a particular rock is heavy.’” The chief justice concluded that answering that question “would require us to act as legislators, not judges,” and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus….”
…Neither the Court nor its specifically conservative members has ever offered a reason for refusing to consider the mountain of evidence showing that those who enacted the Fourteenth Amendment meant to make the term “person” transparent for the truth of the matter. One possible reason is that doing so would lead straightaway to having to affirm the second proposition which is, by their lights, none of their business.
If the Court were to recognize the unborn as the persons they are, then all the problems Roberts catalogued would disappear. For when the unborn are counted as “persons” equal to others, the universally applicable legal norms about justification and excuse would pertain to them too. In a certain sense, it would be business as usual; abortion would scarcely be a special case at all.
Finally, adding Roberts’s assertions about the intrinsically legislative character of abortion regulations to the claim that personhood is “non-justiciable” leads to a most unappealing sum. All that these claims could possibly establish is that courts are not equipped to answer certain constitutional questions about killing the unborn; these matters are above (or below, depending on one’s point of view, I suppose) the judicial paygrade. These claims establish nothing about the true meaning of the Constitution. They do not show that the Constitution is silent about abortion. They report only that judges have obliged themselves to be mute on the subject.
The obvious candidate to fill out the judicially unavailable constitutional law about abortion would be the body explicitly authorized by the Fourteenth Amendment to enforce it—Congress. Section five is one of the two express references in that amendment to the power of Congress to make its provisions work. (The Court’s power to enforce the amendment is implicit or presupposed.) The leading effect of constitutional conservatism is, tragically, to make certain that if the new Democratic Congress “codifies” Roe, the Supreme Court will have rendered itself helpless to resist it.
The above is a shortened version of a Jan. 12 article by Gerard V. Bradley in First Things. Bradley is professor of law at the University of Notre Dame.