www.workersworldtoday.com
May 2022
6
Civil Rights
What Would It Mean to Codify Roe into Law – What is the Chance of that Happening? BY LINDA C. MCCLAIN THE CONVERSATION
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bortion rights advocates are looking for alternative ways to protect a woman’s right to the procedure following the publication of a leaked draft opinion from Justice Samuel Alito indicating that the Supreme Court intends to overturn Roe v. Wade. “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” tweeted Sen. Bernie Sanders as news broke on May 2, 2022. His plea was echoed a day later by Democrats, including Sen. Elizabeth Warren and President Joe Biden. But is enshrining abortion rights in legislation feasible? And why has it not been done before? The Conversation put these questions and others to Linda C. McClain, an expert on civil rights law and femi-
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nist legal theory at Boston University School of Law. What does it mean to ‘codify’ Roe v. Wade? In simple terms, to codify something means to enshrine a right or a rule into a formal systematic code. It could be done through an act of Congress in the form of a federal law. Similarly, state legislatures can codify rights by enacting laws. To codify Roe for all Americans, Congress would need to pass a law that would provide the same protections that Roe did – so a law
that states that women have a right to abortion without excessive government restrictions. It would be binding for all states. But here’s the twist: Despite some politicians saying that they want to “codify Roe,” Congress isn’t looking to enshrine Roe in law. That’s because Roe v. Wade hasn’t been in place since 1992. The Supreme Court’s Planned Parenthood. v. Casey ruling affirmed it, but also modified it in significant ways. In Casey, the court upheld Roe’s holding that a woman
has the right to choose to terminate a pregnancy up to the point of fetal viability and that states could restrict abortion after that point, subject to exceptions to protect the life or health of the pregnant woman. But the Casey court concluded that Roe too severely limited state regulation prior to fetal viability and held that states could impose restrictions on abortion throughout pregnancy to protect potential life as well as to protect maternal health – including during the first trimester. Casey also introduced the “undue burden” test, which prevented states from imposing restrictions that had the purpose or effect of placing unnecessary barriers on women seeking to end a pregnancy prior to viability of the fetus. What is the Women’s Health Protection Act? Current efforts to pass federal legislation protecting the right
to abortion center on the proposed Women’s Health Protection Act, introduced in Congress by Congresswoman Judy Chu and sponsored by Senator Richard Blumenthal in 2021. It was passed in the House, but is blocked in the Senate. The legislation would build on the undue burden principle in Casey by seeking to prevent states from imposing unfair restrictions on abortion providers, such as insisting a clinic’s doorway is wide enough for surgical gurneys to pass through, or that abortion practitioners need to have admitting privileges at nearby hospitals. The Women’s Health Protection Act uses the language of the Casey ruling in saying that these so-called TRAP (Targeted Regulation of Abortion Providers) laws place an “undue burden” on people seeking an abortion. It also appeals to Casey’s recognition continued on page 7
