On Monday night, Democratic nominee Joe Biden explained what he would do if the Supreme Court were to strike down Roe v. Wade (1973), the decision that struck down state abortion laws across the country by redefining the Fourteenth Amendment to include a right to abortion. The Democrat said he would pass legislation codifying Roe. President Donald Trump noted that similar attempts to do that have resulted in extremely radical abortion bills in states like New York and Virginia.
During an NBC News town hall, Cassidy Brown referenced Trump’s Supreme Court nominee, Amy Coney Barrett, and asked Biden about his plans to “protect reproductive rights in the U.S.?”
“Number one, we don’t know exactly what she will do, although the expectation is that she may very well move to overrule Roe. The only responsible response to that would be to pass legislation making Roe the law of the land. That’s what I would do,” Biden replied.
The Democrat tweeted the video of his answer with the message, “Roe v. Wade must remain the law of the land.”
Roe v. Wade must remain the law of the land. pic.twitter.com/1Gq6Ncc2IK
— Joe Biden (@JoeBiden) October 6, 2020
Trump responded with amazement.
“Wow. Joe Biden just took a more Liberal position on Roe v. Wade than Elizabeth Warren at her highest,” the president tweeted. “He also wants to PACK our great United States Supreme Court. This is what the Dems will do. Remember as they try changing positions before elections end. GET OUT AND VOTE!”
“Biden and Democrats just clarified the fact that they are fully in favor of (very) LATE TERM ABORTION, right up until the time of birth, and beyond – which would be execution,” Trump added. “Biden even endorsed the Governor of Virginia, who stated this clearly for all to hear. GET OUT & VOTE!!!”
Biden and Democrats just clarified the fact that they are fully in favor of (very) LATE TERM ABORTION, right up until the time of birth, and beyond – which would be execution. Biden even endorsed the Governor of Virginia, who stated this clearly for all to hear. GET OUT & VOTE!!!
— Donald J. Trump (@realDonaldTrump) October 6, 2020
Codifying Roe v. Wade
Ironically, Roe v. Wade is not exactly “the law of the land.” While later Supreme Court decisions upheld the central premise of Roe — that the Fourteenth Amendment guarantees a right to privacy which guarantees a right to abortion — they substantially altered Roe v. Wade‘s extremely vague rules on abortion, eroding various attempts to protect the lives of unborn babies.
For this reason, legislative attempts to codify Roe v. Wade in state law have proven rather extreme.
For instance, last year, Gov. Andrew Cuomo (D-N.Y.) signed a bill that allows abortion throughout pregnancy in the name of protecting a woman’s health, repeals protections for babies who survive abortion, and removes New York’s protections for wanted babies and their mothers.
Previously, New York law considered it a homicide when someone beats a pregnant mother and causes her to lose her unborn baby. Even when New York legalized abortion in 1970, the law still defined the death of an unborn baby after 24 weeks gestational age as homicide. Thanks to Cuomo’s new law, even a wanted unborn baby no longer enjoys this protection.
The vast majority of New Yorkers disagree with the new law on abortion. According to a March 2019 poll, 79 percent of New York State residents support some restrictions on abortion. Thirteen percent say abortion should be limited to the first six months of pregnancy; 26 percent say it should be limited to the first three months; 22 percent would restrict it to cases involving rape, incest, or a threat to the mother’s life; 9 percent would only allow it in situations that threaten the mother’s life; and 9 percent would never permit abortion under any circumstances.
In November 2019, Cuomo signed another bill that would force abortion orthodoxy on pro-life employers, including crisis pregnancy centers and churches. Under the law, pro-life organizations would have to hire people whose beliefs and behavior endorse abortion. Two pregnancy center groups and a church filed a lawsuit to prevent the law from going into effect.
President Trump referred to Gov. Ralph Northam (D-Va.), who infamously defended what was arguably a form of infanticide. Virginia’s legislature — which became Democrat-dominated in January 2019 — was considering a bill legalizing abortion. Delegate Kathy Tran (D-Springfield) testified that the bill would allow a doctor to kill an unborn baby up until the point of birth.
Northam defended third-trimester abortions, insisting that they occur only with the consent of the mother and more than one doctor. “And it’s done in cases where there may be severe deformities, there may be a fetus that’s non-viable,” the governor added. Yet he went on to describe a situation in which a baby survives an attempt at abortion but then is killed by exposure when doctors provide “palliative care” instead of life-giving care.
“If a mother is in labor, I can tell you exactly what would happen, the infant would be delivered,” Northam explained. “The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians & mother.”
Northam said that if a baby is born alive despite the efforts of the doctor to kill the baby in an abortion, the infant would “be resuscitated” only “if that’s what the mother and the family desired.” In other words, a baby who survives an attempted abortion should be considered dead, so that caring for the baby would be considered “resuscitation.”
Under this logic, abortion doctors should merely give babies born alive “palliative care” intended to comfort the baby as he or she dies — as Northam said, “the infant would be kept comfortable.” Even healthy babies need warmth and nourishment after birth, so giving them palliative care instead of life-saving care is effectively a sentence of death.
Trump was referring to these comments when he accused Biden of supporting “execution.”
While Democratic attempts to codify Roe v. Wade into law are extreme, it remains unclear exactly what legislation Biden would support. It seems likely whatever legislation he backs would follow the leads of Cuomo and Northam, but it remains unclear.
Biden did indeed endorse Northam in the 2017 Virginia governor’s race, but he has not endorsed Northam since then. In fact, Biden demanded that Northam resign after a pro-life Virginian leaked the infamous 1984 yearbook photo with two men in blackface and a KKK hood — in response to Northam’s infantifide comments. That photo appeared on Northam’s page. Northam has insisted he was not in the photo, but it seems impossible to prove. (In a tragic irony, Northam won the 2017 race by condemning his Republican challenger, Ed Gillespie, as a racist.)
Trump was right to call out the Democrats’ extremism on abortion, but his accusations went far beyond Biden’s statements.
Ironically, Joe Biden’s pledge to support legislation on abortion — even extreme legislation codifying Roe v. Wade — is a step in the right direction. When the Supreme Court decided Roe v. Wade, it effectively circumvented both Congress and the state legislatures to unilaterally amend the Constitution enshrining a right to abortion. Reversing this unilateral usurpation of power is extremely important, even if Congress responds by enshrining the Court’s abortion rulings in law.
Yet, as Jonathan Turley noted, if the Court strikes down Roe and Congress passed a law on abortion, the states could challenge it under the Tenth Amendment. They can claim that a right to abortion is not “delegated to the United States by the Constitution, nor prohibited by it to the States.”
The Supreme Court would be right to strike down Roe v. Wade and such a move would allow the states to make their own laws on abortion, as they did before 1973. Biden’s attempt to make federal law on abortion is a good step away from judicial fiat, but even Congress may lack the authority to make nationwide law on the issue. The Supreme Court should not have struck down state laws on abortion, and it should return decisionmaking power on this vital issue to the states.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.