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What Would It Mean to Codify Roe v. Wade?

Linda McClain, a BU School of Law professor of law and the Robert Kent Professor of Law, discusses what it would mean to codify Roe v. Wade, after Texas enacted one of the most restrictive abortion laws in the country. McClain also talks about previous attempts to codify Roe v. Wade, the Women’s Health Protection Act, and the future of abortion access in this country.

Note: A few days after this podcast was recorded, the US House of Representatives passed the Women’s Health Protection Act. The act now goes to the Senate, where it is considered unlikely to pass.

To learn more about what the Texas Abortion Law means for the future of Roe v. Wade, check out BU Today’s recent interview with Nicole Huberfeld, a BU School of Public Health and School of Law professor.

 You can also find this episode on Apple Podcasts, Spotify, Google Podcasts, and other podcast platforms.

Takeaways

• Codifying Roe v. Wade would mean passing a law that would affirm a pregnant person’s right to an abortion without undue interference
• The most effective way to codify Roe v. Wade would be for Congress to pass a law, such as the Women’s Health Protection Act, that would be binding for all states. This act was passed in the House on September 24, but it is considered unlikely to pass in the Senate
• Unless Roe v. Wade is codified, blue states will likely decide to codify Roe, while red states will continue to enact restrictions on abortion rights, like the 2021 Texas Abortion Law

Transcript

Dana: This is Question of the Week, from BU Today. Would codifying Roe v. Wade protect abortion rights? In this episode, BU Today staff writer Amy Laskowski talks to Linda McLean, a BU School of Law professor, about what it would mean to codify Roe v. Wade. McLean also outlines how abortion rights have been eroded in the courts over time and discusses the likelihood of Congress passing legislation like the Women’s Health Protection Act.

Amy Laskowski: Our question this week is one that has a lot of pro choice people worried: what would it mean to codify Roe v. Wade, which protects a pregnant woman’s right to an abortion? Linda, thanks for joining us today.

Linda McClain: Happy to be here. So to clarify, Roe v. Wade would mean to pass a law—either state law or federal law—that would affirm a pregnant person’s right to access an abortion without undue interference.

And the most effective way to codify Roe is probably the least likely, which would be for Congress to pass a law that would be binding on all the states, because although particular states could, and already have in some ways, codified Roe v. Wade, many states will not, and you’ll have the checkerboard we have right now.

Laskowski: Have Democrats proposed codifying Roe v. Wade before and why weren’t they successful?

McClain: Yeah, that’s a great question. So, one thing that’s important to understand is that when people talk about codifying Roe v. Wade, you have to understand that we haven’t had Roe v. Wade since 1992.

Because in 1992, the Supreme Court decided Planned Parenthood v. Casey, which said that it was upholding the ultimate holding in Roe, which was up to viability the pregnant woman has the right to choose without undue governmental interference, but it opened the door to a wide range of regulation of abortion that was not permitted prior to Roe.

So in other words, Roe had a trimester approach, which was during the first trimester, basically because pregnancy was safer than childbirth and there was very little room for state regulation other than of course, ensuring consent. During the second trimester, the state could regulate to protect the woman’s health, and then they could prohibit abortion in the third trimester in the interest of protecting fetal life, subject to exceptions for life and health of the pregnant person.

So this was a trimester approach. Planned Parenthood v. Casey basically threw that out pre-viability, and said from the very beginning of pregnancy, the state has a profound interest in protecting potential life and that opens the door to waiting periods, informed consent, which requires someone to have one consultation and come back, ultrasounds, all sorts of things that previous to Casey, the court struck down.

That’s a little bit of a perspective on this whole thing of codifying Roe v. Wade; we haven’t really had Roe in its full form since 1992.

Laskowski: Linda, would you mind summarizing the Hyde [Amendment] and [Planned Parenthood v. Casey] for those of us who aren’t sure what those are?

McClain: So, soon after Roe v. Wade was enacted, many women were obtaining their abortion care through the use of Medicaid, through government-funded medical care for low-income women, and Henry Hyde [US congressman, R-Ill.] was particularly zealous in trying to stop abortion. But he recognized that the most effective way he could do so was to limit government’s payments for abortion.

He couldn’t stop every woman from getting an abortion, because they hadn’t been able to pass the Human Life Amendment, so instead he passed this Hyde Amendment, which restricted use of government funds so that you couldn’t use government funds for abortion. And over the years it’s varied whether you can use them to save the life or health of a pregnant woman, or whether there’s no exceptions for rape or what have you.

So the Supreme Court upheld the Hyde Amendment, and those were really the cases that introduced the undue burden test, which is: as long as government’s not putting an obstacle in the path of a woman’s access to abortion, they’re not violating her rights. So her poverty is her problem—we didn’t do that, that’s just her problem.

So what Planned Parenthood v. Casey does in 1992, is take that undue burden test that came in these public funding cases and make that the new standard. So Casey actually talks about this as an undue burden and as long as this restriction is not an undue burden, then it’s permissible if it furthers women’s health or fetal life.

And then that opens the door to all sorts of different restrictions, and then the courts got to decide: “Yeah, that looks like it’s undue,” “No, that’s not undue.” So that’s why we get all these so-called TRAP [targeted restrictions on abortion providers] Laws. And we see that sometimes the court is able to say, “That is undue,” like the [Whole Woman’s Health v. Hellerstedt] or the [June Medical Services, LLC v. Russo] case, but in many other instances, ultrasounds… Casey itself involved a waiting period, you know, the court is willing to say, “No, that’s not undue.” So, one of the other things I’ll say about Casey is: Casey gives a much more robust defense of why women need access to abortion—it talks about their autonomy, their dignity, their liberty.

Because Roe v. Wade talked about abortion [being] more about the right of the doctor in consultation with the patient to make this medical decision. So the upside of Casey is that it has this powerful language about the ability to participate in the life of the nation, which is quoted in the current bill before Congress, but the downside is it has a more restrictive framework that allows lots more latitude for the state to act on behalf of fetal life, or to use the language of the Human Life Amendment, “unborn children.” 

Laskowski: You mentioned the act before Congress right now, the Women’s Health Protection Act. Can you talk a little bit about that?

McClain: So, that was introduced in 2019 and it’s being reintroduced again.

And that act basically quotes Casey‘s language that the access to abortion has been essential to women’s ability to participate in the social and economic life of the nation—it quotes that three times. So it’s kind of using the Casey language to talk about how critical it is for pregnant people to have access to abortion.

It talks about the slew of restrictions on abortion access in all these different states, hundreds of laws, TRAP Laws, targeted regulations against abortion providers, that tried to make it more difficult for doctors and medical providers to provide abortion and women to access it. And it basically attempts to codify Roe v. Wade by saying: pre-viability, an abortion provider has the right to provide access to abortion, and women have a right to access it.

And it specifically names lots of different state regulations and saying they’re not permitted, such as making a woman make more than one trip, prescribing unnecessary tests, making the clinics comply with regulations that would not be used for other procedures. And it says: unless you would require this kind of regulation for a comparable medical procedure, you can’t require it for an abortion.

Because they have rules like: you have to have super wide hallways, you have to have admitting privileges, and there’s been all these efforts to kind of restrict the ability of clinics to operate. And basically, to use Justice Sotomayor’s idea, you can’t single out abortion for exceptionally harsh treatment, which is what’s basically been happening, right?

Like making telemedicine much more difficult in the case of abortion than you would for any other procedures, and things like that, [which] really shifts the burden. Instead of this undue burden test that Casey talked about, it basically says that all these different types of regulations are simply not permitted.

And then if you do put restrictions on women’s access, the burden falls on the person who’s adopting the restriction or the entity to demonstrate by clear and convincing evidence that this is necessary, and there’s no less restrictive alternative. So that takes us closer to what Roe had, which is kind of a strict scrutiny approach to fundamental rights, which Casey basically abandoned.

And I would just say that the act also points out that these restrictions tend to fall more harshly on women of color, on rural women, on immigrant women, on poor women, and so these burdens don’t fall evenly.

Laskowski: So if the Democrats aren’t successful, where does that leave abortion access in this country?

McClain: Well, I think the Democrats will be successful in the House, but this isn’t going to get through the Senate unless it can even get to so-called cloture, which is 60 votes, and I think where it leaves us is state by state, right? Unfortunately, it’s in the hands of the federal courts in some of these red states.

The Supreme Court temporarily has hindered the challenge to the Texas [Abortion] Law by letting it go into effect right away and all this damage is going to be done, but what it means is that blue states are likely to pass more laws codifying Roe v. Wade or some type of access to abortion rights.

I think there’s going to be efforts to help people in red states have access to abortion out of state, you know, the very sort of thing that we’re supposed to be protecting against. It leaves people in states that are ready to pass more of these laws in a bad place.

The pro-life people, or the anti-choice people, have operated on many fronts at once: they still are hoping to pass a Human Life Amendment, but that’s very unrealistic for the current Congress, and so they chipped away for decades at abortion rights by all these restrictions. And now, this [Texas Abortion Law] is the most extreme version, because you pass a blatantly unconstitutional law, and then make private citizens the enforcer, so you try to avoid federal court review.

And the scary thing is, we now have several justices on the court who are critical of Roe, and some people just think that Roe is basically gone, and the question is, well, if that happens, it returns to the states, and then we’re back to the checkerboard. And whatever state you live in determines your rights, unless you have the resources to go to another state.

Laskowski: Unless you’re wealthy and have the means, like you said, to fly somewhere, get a ride, and take time off of work. 

Linda, thanks so much for speaking with us today about: can Roe v. Wade be codified. It’s complicated and we appreciate your insight. Thanks very much.

McClain: Thank you.

Ferrante: Thanks to Linda McClain for joining us on this episode of Question of the Week. To learn more about what the Texas Abortion Law means for the future of Roe v. Wade, check out BU Today‘s recent interview with Nicole Huberfeld, Edward R.Utley Professor of Health Law, Ethics, and Human Rights and a BU School of Public Health and School of Law professor. You can find the link to this piece in the show notes.

And while you’re there, please remember to rate, share, and review us on your podcast app of choice. I’m Dana Ferrante; see you next week.

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