President Joe Biden is no fan of the Supreme Court’s decision overturning Roe v. Wade.
Biden called it “the Supreme Court’s terrible, extreme, and, I think, so totally wrongheaded decision.” In his anger, he got a few things wrong.
One big thing he did get right: Finding the proper balance between protecting fetal life and recognizing the pregnant woman’s bodily autonomy will now be up to millions of voters participating in the democratic electoral process in multiple jurisdictions throughout the country, rather than nine unelected justices sitting in a Washington, D.C., courthouse.
WHITE HOUSE PROMISES ABORTION SUPPORTERS BIDEN’S ROE FIGHT ISN’T OVER
“That’s another way of saying that you, the women of America, can determine the outcome of this issue,” Biden said.
It’s also an important distinction between Roe and Dobbs v. Jackson Women’s Health Organization. The former nullified the democratic consensus in Utah and Louisiana. The latter does not do the same in New York or California.
Biden described Dobbs as “an exercise in raw political power.” That appears to borrow from Democratic-appointed Justice Byron White’s description of Roe as “an exercise of raw judicial power,” and “an improvident and extravagant” one at that, in his 1973 dissent. Roe gave an appointed Supreme Court the unilateral power to set abortion policy in all 50 states, reversible only after a decadeslong process across multiple presidential and congressional elections. Dobbs did no such thing, and any abortion restrictions are imposed by democratically accountable elected officials who can be replaced by the voters on a regular basis.
Under Roe, the Supreme Court pretended to weigh the conflicts between fetal life and women’s self-determination carefully in the way a legislative body might. But most of the concessions to fetal life that Roe appeared to give, the companion case Doe v. Bolton took away. The “viability line drawn by Roe” Biden referred to in his Friday remarks was actually drawn when the Supreme Court had to completely revamp its rationale and framework in Planned Parenthood v. Casey 19 years later — despite calling the original decision a “reasoned statement, elaborated with great care.”
The “extreme Republican governors, extreme Republican state legislatures, and Republican extremists in the Congress overall” whose abortion views Biden decries were all elected by their constituents as surely as he was. And if they do take “the Court’s decision as a green light to impose some of the harshest and most restrictive laws seen in this country in a long time,” they can be voted out of office as early as November — not repudiated 49 years from now.
In election years, these candidates will no longer be able to campaign on supporting a particular abortion policy in theory, secure in the knowledge that the Supreme Court would not permit them to enact or enforce it. Their positions will actually matter and have to be justified to the voters.
There is no guarantee that this will redound to antiabortion Republicans’ electoral benefit. Gallup found that the number of people in America self-identifying as “pro-life” fell 10 percentage points from a 49% plurality in May 2019 to 39% in May of this year, when the Dobbs draft leaked. Those identifying as “pro-choice” climbed from 46% to a solid 55% majority, the label’s first since 1997. (Though the public’s views on the circumstances under which abortion should be legal were more stable.)
Casey was a massive disappointment to abortion foes because it left Roe’s core holding intact, but it marginally expanded the states’ ability to regulate abortion, almost entirely in areas where restrictions were popular. Dobbs would allow them to regulate abortion in ways that are currently unpopular.
At the same time, the Democrats are pushing national legislation that would negate abortion restrictions allowed under Casey that the public supports. The White House won’t commit to supporting more modest bills to highlight supposed Republican extremism, instead illustrating their own.
The public is divided on and ambivalent about abortion. Neither party fully represents the majority’s sentiment on the issue. Under Dobbs, the laws will better reflect the variety of opinions that exists throughout the country. And the parties will be forced to persuade, adapt, or risk defeat.
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“Yes, democracy is hard. We all know that it works best with consensus and cooperation,” Biden, the leader of the Democratic Party, said recently. “When people and parties that might have opposing views sit down and find ways to work together, things begin to work.”
Does that better describe Roe or Dobbs?
