WASHINGTON — In just one week, a policy proposal on abortion went from relative obscurity to being a major part of the platforms of the majority of Democrats running for president: codifying the landmark 1973 Supreme Court ruling that made abortion legal nationwide, Roe v. Wade.
As most of the candidates define it, this means making access to legal abortion federal law by passing legislation in Congress, even if the Supreme Court ends up overturning Roe v. Wade.
It’s not a new idea. It has been tossed around for years by abortion rights advocates and politicians, gained some popularity after Trump was elected in 2016, and was introduced unsuccessfully in Congress in 2013 and again in 2017. But over the past few weeks, as more and more states passed laws that would greatly restrict abortion access — coming to a head with Alabama’s near-total ban on abortion — voters have flooded the internet and the streets, seeing this trend as a quickening path to destroying the national right to abortion access.
Roe v. Wade being overturned once seemed nearly impossible for abortion rights activists, so the legislation flew relatively under the radar. But now, as lawsuits challenging restrictive state abortion laws make their way through the courts, and with two conservative Trump-appointed Supreme Court justices who have both expressed anti-abortion views in the past, the threat to Roe v. Wade is beginning to seem real and imminent.
In an interview with BuzzFeed News last week, New Jersey Sen. Cory Booker became one of the first 2020 presidential candidates to propose codifying Roe as his official platform on abortion. He was quickly followed by Sen. Kirsten Gillibrand, who published a Medium post on Thursday, May 16, putting “codify[ing] Roe v. Wade into law” as point one on her “plan to truly go on offense to guarantee women’s civil rights.”
The next day, Sen. Elizabeth Warren followed suit with another Medium post, called “Congressional Action to Protect Choice,” which also placed codifying the equivalent of Roe v. Wade as the first item in her plan for Congress to “pass new federal laws that protect access to reproductive care from right-wing ideologues in the states.”
By Tuesday this week, the campaigns of 22 of the 24 Democrats running for president told BuzzFeed News in emailed statements their candidate supported codifying Roe v. Wade through laws in Congress. (Bill de Blasio and Tulsi Gabbard's campaigns did not respond to repeated requests for comment.)
Then on Wednesday morning, Democratic Sens. Richard Blumenthal and Tammy Baldwin, and Reps. Judy Chu and Lois Frankel announced they would introduce a bill that would accomplish exactly what all the candidates are discussing: the Women’s Health Protection Act. The act, a version of which was first introduced in 2013, would “guarantee woman’s [sic] right to safe and legal abortion and stop restrictive regulations and laws,” a statement sent out Tuesday evening read. Sens. Warren, Gillibrand, Booker, Amy Klobuchar, Kamala Harris, Bernie Sanders, and Michael Bennet are all cosponsors on the bill.
But the bill has little to no chance of passing Congress with a Republican-majority Senate. And even if Democrats keep the House and take back the Senate as well as the presidency in 2020 — a big if — congressional legislation isn’t the safest option to protect abortion rights. Democrats would still need 60 votes to pass federal legislation to protect Roe, and if they managed that, it would likely be overturned as soon as Republicans take back the power. Additionally, if the Supreme Court does decide to overturn Roe v. Wade, it’s possible the court would include language that could open federal legislation legalizing abortion nationwide to lawsuits.
Because of that difficulty, several of the Democratic presidential candidates framed the option as a safety net or last resort.
"Roe v. Wade lays out a constitutional guarantee that a woman can, in fact, make a choice between she and her doctor,” a spokesperson for former vice president Joe Biden’s presidential campaign told BuzzFeed News in an email. “Should it become necessary, Biden believes that codifying Roe through legislation must be pursued."
This legislation is not the only avenue the candidates are exploring their speedily issued abortion platforms: Warren’s plan proposes passing legislation that targets “TRAP laws,” the name advocates give to state laws that aim to shutter abortion clinics by passing regulations difficult for them to comply with. Gillibrand’s plan would “create a a funding stream” specifically for “reproductive health care” for every state in the country, and would protect private insurance coverage for abortion.
Early Wednesday morning, Booker released plans to create a “White House Office of Reproductive Freedom” on day one of his presidency, if he were elected, “charged with coordinating and affirmatively advancing abortion rights and access to reproductive health care across.” Mike Gravel's campaign told BuzzFeed News that he believes "all obstrecticians [sic] looking to obtain a license must be willing to perform abortions to attain licensure." More than half the candidates have said that they want to repeal the Hyde Amendment, the law that prevents federal funding from going toward abortion. (That list includes Sanders, Gillibrand, Warren, Booker, Ryan, Bennet, Harris, Steve Bullock, Andrew Yang, Pete Buttigieg, Jay Inslee, Eric Swalwell, and Julián Castro).
“Bernie believes we must fight as hard as we can to protect the constitutional rights of women,” a spokesperson for Sanders’ campaign told BuzzFeed News in a statement, “so as president he would use every available executive, judicial, and legislative tool to do so, including by appointing federal judges who will protect Roe, by fighting unconstitutional bans and restrictions, and by building a movement that speaks out for the vast majority of Americans who believe Roe should remain the law of the land.”
Two abortion rights advocates (who asked to remain anonymous so as not to affect their relationship with Democratic campaigns) expressed concern that framing passing a bill in Congress as the number one way to combat the “attack on abortion rights” from the right could be interpreted as defeatist by voters, who are already consuming and sharing misinformation out of fear and panic. The advocates were concerned it could send the message that Roe v. Wade being overturned is inevitable, and not something that could potentially be prevented with action and education campaigns, which they purport it could.
After all, despite the tone of alarm expressed in many op-eds and on Twitter by celebrities and advocates, Roe v. Wade being overturned is not a sure thing.
Advocates are suing or planning to sue over the abortion bans passed in Mississippi, Ohio, Georgia, and Alabama, and each ban is likely to be blocked by the courts, as has been the case with every other similar abortion ban passed in the US. The states will then appeal those lawsuits, and they’ll make their way up to the Supreme Court, where the justices have the option of picking one to hear, combining a bunch of the cases, or refusing to hear any of them. If they choose to hear the cases, it is possible the majority — including two conservative justices appointed by Trump — could make a decision overturning or greatly weakening Roe v. Wade. Alternatively, the court could decide to uphold the 1973 decision, or it could choose not to hear any of the cases at all.
Some argue that making it clear overturning Roe v. Wade would cause an uproar could help persuade Chief Justice John Roberts (who is seen by many as the new “swing vote” between the court's more conservative and more liberal justices) to avoid making that decision.
Advocates are already making noise. This week, abortion rights groups organized nearly 500 protests across the country; on Tuesday, NARAL, Planned Parenthood, Spark, and All Above All held a rally outside the Supreme Court.
However, many other abortion rights proponents, including NARAL, say that there’s no harm in trying to pass legislation codifying Roe v. Wade, that fighting against the decision being overturned and fighting for this safety net are not mutually exclusive, and that advocates and politicians should be exploring every path they can.
“As a woman lived through the craziness in Alabama, I think it’s possible to have more than one path to the same goal” Joyce White Vance, the former US attorney for the Northern District of Alabama, told BuzzFeed News. “There are three branches of government, so there are three different routes to protecting reproductive rights.”
A spokesperson for NARAL agreed: “There is no way to ensure 100% that Roe will not be overturned — especially given the makeup of the Supreme Court today with two Trump appointees, and there are multiple avenues that could be taken to assure a federal protection for the legal right to abortion that is currently reflected in Roe.”
“There’s always been these thoughts about different strategies, but this is the first time that the risk of losing Roe has been this acute,” Vance told BuzzFeed News. Keeping Roe from being overturned or whittled down is “the most secure route and the safest route, but I think what matters most is we develop consensus around finding every available path.”
This post has been updated to reflect responses from the campaigns of John Delaney, Marianne Williamson, Wayne Messam, and Mike Gravel. The candidates support legislation codifying Roe v. Wade.