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Louis Jacobson
By Louis Jacobson December 14, 2021

House passes bill to enshrine Roe v. Wade, but threats to ruling mount

As a presidential candidate, Joe Biden promised to work to codify Roe v. Wade, the 1973 Supreme Court decision that made abortion legal nationally in many cases. Now the Supreme Court is considering whether to weaken or even overturn this legal precedent, and Democrats have taken up the issue with special urgency.

While the Biden administration and congressional Democrats have made some tangible efforts to bolster abortion rights, oral arguments at the Supreme Court over a Mississippi law that banned most abortions after 15 weeks of pregnancy suggested that a majority of justices were more open to significant changes to Roe than at any time in decades.

In December 2021, the Supreme Court heard oral arguments in a lawsuit that challenged the Mississippi law, which includes a shorter timeline for legal abortions than required under Roe. The Mississippi case offers the justices a clear opportunity to either change what's allowable under Roe or overturn the decision fully, letting states decide to enact more stringent bans on the procedure than would be allowed under Roe.

Legislation to effectively write Roe v. Wade into federal statutes has progressed. On Sept. 24, the House passed H.R. 3755, the Women's Health Protection Act of 2021, which said that health care providers have "a statutory right … to provide abortion services." The bill passed the House, 218-211, with all but one Democrat voting for it and all Republicans voting against it. 

However, the legislation is widely considered a nonstarter in the Senate, where it would require the support of 60 senators to proceed to a vote. Only a handful of Senate Republicans are  considered to be open to supporting a vote on the measure.

Meanwhile, the Justice Department has taken an active role in opposing state laws that could be used to overturn Roe v. Wade.

At the oral arguments over the Mississippi law, U.S. Solicitor General Elizabeth B. Prelogar made the case for striking down the law. 

Effectively overturning Roe by allowing the Mississippi law to stand "would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis," or respect for the Supreme Court's precedents, she said. "The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society."

In addition, the Justice Department has filed a lawsuit to stop a different state law that could pose a threat to Roe.

This law, enacted in Texas, bans most abortions after six weeks, effectively blocking the vast majority of abortions in the state. The Texas law also used a novel enforcement mechanism that makes it harder to challenge in court: It allowed private citizens to file lawsuits against abortion providers and others who enabled an abortion after six weeks.

This enforcement mechanism is "an unprecedented" effort whose "obvious and expressly acknowledged intention" was to prevent women from having abortions, said U.S. Attorney General Merrick B. Garland at a news conference.

The Supreme Court has so far allowed the Texas law to remain on the books, but it has said the law can be legally challenged.

Despite the administration's legal efforts to support abortion rights, the ultimate question of whether Roe v. Wade remains in force is something the Supreme Court will decide, not the administration. And unless the longstanding 60-vote requirement in the Senate is eliminated, a change that does not seem imminent, then congressional action to put Roe's abortion standards into statute appears to be at a standstill.

It's possible that a Supreme Court decision to overturn Roe v. Wade could energize supporters of abortion rights, changing the political calculus for Congress. But that result would be speculative. For now, we rate this promise Stalled.

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