In one of its first public statements, the Biden administration committed “to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.” This commitment anticipates a future without constitutional protection for abortion rights—a reality that looks all but certain given the leaked draft of the Court’s decision to overturn Roe. But any effort by the Biden administration to “codify” Roe in federal legislation will face deep political resistance and inevitably reflect some measure of compromise. And while President Joe Biden’s pledge to protect Roe is welcome support of abortion rights, his terminology reflects a fundamentally misguided legislative aspiration.
Though the 1973 decision in Roe established a constitutionally protected right to abortion, it never guaranteed abortion access. The Supreme Court held only that state criminal laws banning abortion were an infringement of the constitutional right to privacy. Patients, in consultation with their physicians, could elect to have an abortion for any reason during the first trimester of pregnancy. In the second trimester states could regulate abortions in order to protect the pregnant person’s health or the dignity of potential life, but after the second trimester, a state was permitted to ban abortion unless terminating the pregnancy was necessary to preserve the patient’s life or health. This trimester system was abandoned in 1992, when the Court held that states could restrict abortion before viability—around twenty-four weeks of gestation—so long as the regulation did not place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The Court’s decision to reject Roe’s trimester framework nevertheless claimed to preserve “the essential holding of Roe.”
This essay is featured in Rethinking Law.
Given this history, current proposals to “codify” Roe could mean one of two things. On the one hand, it could mean establishing abortion as a statutory right to privacy, which is a basis of Supreme Court decisions that appeal to the Fourteenth Amendment. It could also mean creating a statutory framework for abortion rights tethered to fetal viability. Both approaches—even if politically successful—could make subsequent federal legislation out of touch and out of date. Instead of seeking to codify Roe, we ought to enact policies that strengthen the infrastructure for delivering abortion services.
First, as many have long argued, a right to privacy is an inadequate anchor for abortion rights. Privacy undergirds an individual’s freedom from government interference when choosing to end a pregnancy, yet it demands nothing from the state to support the realization of that choice or to create the conditions that ensure access to abortion. This insight has informed a shift in focus from reproductive rights to reproductive justice—the latter stressing that privacy rights are only valuable for people who can exercise them and emphasizing the needs of people oppressed, marginalized, and excluded by law.
Second, statutory rights based on a trimester or viability framework could, in practice, fail to thwart various state restrictions on abortions—restrictions that could proliferate when Roe is no longer the law of the land. For example, some state laws dictate that people must receive counseling or undergo superfluous medical procedures and tests before getting an abortion. Other laws single out abortion clinics and providers for financial and logistical burdens that are not typically imposed on other health care sectors.
By contrast, the Women’s Health Protection Act (WHPA) illustrates how modern abortion legislation could go well beyond merely “codifying Roe.” In a few of its provisions, the bill addresses specific restrictions on abortion, such as unnecessary waiting periods, inaccurate informed consent materials, pointless and expensive in-person visits, and restrictions placed on why people might have an abortion. If enacted, the bill would give providers the right to offer abortion care, and their patients the right to receive that care, free from state regulations that impede access and treat abortion differently than similar health care services. States passing new laws would have to show that regulation makes abortion services significantly safer or protects patients’ health.
Unfortunately, though the bill was passed by the House last September, it failed to progress in the Senate earlier this year. Still, supporters remain hopeful that WHPA will gain traction if the Supreme Court overturns (or eviscerates) Roe and as reproductive justice becomes a significant issue for the November midterm elections. WHPA’s sponsors must be aware, however, that any such proposal might not be able to withstand a challenge before the Supreme Court. Although WHPA drafters wrote a bill with prospective litigation in mind, one can easily imagine the arguments that anti-abortion states would make in challenging WHPA’s legality.
Despite these political and legal obstacles, the struggle to enact federal legislation is in itself worthwhile. Proposed legislation such as WHPA is remarkable, regardless of its achievability, because of the commitments to reproductive justice that it articulates and draws together. WHPA represents a distinctly intersectional approach; it acknowledges that not all people who become pregnant identify as women. The bill embraces the idea that abortion care is a public health issue deeply connected with economic and racial justice. These acknowledgments are major steps forward. The bill does not merely aim to codify Roe, but also foregrounds the lessons learned since the decision by blocking current laws that prevent people from receiving care and anticipating future measures that will undermine abortion rights.
Yet for all these important features, it is notable that WHPA does not guarantee funding for abortion services. Many Americans in fact already live in a “post-Roe” country, either lacking meaningful access to abortion care or the ability to pay for the care they might be able to find. Such barriers create serious public health problems while simultaneously entrenching economic and racial inequality. Some 75 percent of people who terminate pregnancies survive at or near the federal poverty line, and a majority of those people report that the cost of raising a child is their chief reason for ending a pregnancy. This should not come as a surprise, given the financial insecurities that dictate the lives and choices of an ever-increasing number of people in the United States. Moreover, most abortion patients are people of color, who are overrepresented among the poor in this country due to centuries of racism.
When people cannot obtain abortion care, they incur social, financial, and physical costs that are extremely difficult to bear and have demonstrable long-term effects that perpetuate cycles of disadvantage and subordination. The COVID-19 pandemic has only amplified these burdens by rendering caregiving responsibilities even more challenging, worsening widespread unemployment and placing increased stress on an already overburdened health care system.
A bill introduced but that has not moved out of the House or Senate, the Equal Access to Abortion Coverage in Health Insurance (EACH) Act, aims to alleviate some of the costs of and barriers to abortion. The bill would require coverage for abortion care through public health insurance programs (such as Medicaid) and for federal employees. The bill also mandates that federally supported health care facilities provide care for eligible individuals and prohibits the federal government from inhibiting state, local, or private insurance plans from covering abortion services. The EACH Act addresses the longstanding prohibition of using federal dollars to pay for abortion care except for limited exceptions—a budget rider known as the Hyde Amendment. Although the Biden administration pledged to abandon the Hyde Amendment, the rider remains in force after a compromise to pass a 2022 budget.
The EACH Act would not only transcend yearly budgetary negotiations but also acknowledge the extent to which law influences health outcomes and reflect the reality that abortion restrictions entrench inequality. This kind of vital work may not be furthered by statutes tied to Roe or even by the Supreme Court’s privacy jurisprudence. On the contrary, the highest goals of reproductive justice depend on the communities and networks of people who are rightly outraged by the assault on abortion rights. Federal action to protect abortion access across states and extend funding for services is important. But even were that legislation politically infeasible, statutes alone will not be enough to change the current political, economic, and social realities that obstruct abortion services.
Abortion rights depend as much upon the on-the-ground interventions that open avenues to care as they do federal rights. The threat to constitutional abortion rights and the difficulty of enacting legislation make that clear.
Increasing access, for example, need not depend on traditional means of obtaining abortion services. Abortion providers and advocates have mobilized quickly during the pandemic, alongside many other sectors of the health care industry, to provide care through telehealth. In July 2020 a federal district court lifted the Food & Drug Administration’s (FDA) requirement that patients pick up the first drug of a medication abortion—the two-drug regimen that ends a pregnancy at or before ten weeks—at a health care facility during the pandemic. After the decision, remote care for abortion expanded and entirely virtual clinics began offering no-touch abortions. Growth of virtual care stalled after the Supreme Court stayed the district court’s order pending the appeals process. But with new leadership at the FDA, persuaded by the evidence of tele-abortion’s safety and efficacy, the agency suspended enforcement of the in-person rule for the course of the pandemic. Then, in December 2021, the FDA lifted the requirement that mifepristone, the first pill in a medication abortion, be picked up in person, clearing the way for supervised mail delivery and a new form of certified pharmacy dispensation.
As health care providers are increasingly able to administer care remotely, and pregnant people can self-administer abortions with minimal professional intervention, the map of abortion access has begun to change in ways that will outlast the pandemic and could withstand decisions by the Supreme Court. Such developments go far beyond anything Roe ever contemplated.
Given these potentially transformative opportunities, legislators would do well to provide funding and practical support that can ensure access to abortion care inside and outside of clinics. Extending telehealth for abortion, as well as self-managed care, would do much to address inequalities and increase access, two issues that have kept reproductive health care out of reach for many. It is time to stop talking about Roe as the touchstone for abortion rights and to start imagining what law and policy can do to facilitate affordable and available services.