Nicholas Goldberg: If Roe vs. Wade is canceled, Congress could protect abortion rights. At least in theory


Congress could simply step in and pass a law codifying Roe’s protections and ensuring abortion would remain legal across the country.

After all, most Americans support the right to abortion, and a slim majority in Congress does too. So why not enact federal law that allows women to control their own bodies (rather than forcing them to bear and bear children against their will)? Even if the newly formed Supreme Court rules that abortion is no longer a constitutional right, a national law would guarantee the right to choose.

Arguably, a law could be just as good, and in some ways better, than relying on the protection of the courts.

Judicial decree is not necessarily the best way to tackle divisive social issues. It is often better to resolve major differences between citizens through the political process – by having members of Congress debate, deliberate and vote on, rather than having a group of unelected judges interpret often obscure constitutional language.

Frankly, it has always been difficult for laypersons to understand the Supreme Court’s decision in Roe. The Constitution obviously does not mention abortion, nor the “right to privacy” that judges have used to justify the right to abortion. Rather, the judges concluded that a right to privacy is implicit in the due process clause of the 14th Amendment.

Now, I agree with this logic, but it’s not entirely straightforward. And that’s part of why the move remained controversial for almost 50 years. Even many supporters of the right to abortion – including the late Justice Ruth Bader Ginsburg – have expressed doubts about how the Supreme Court decided the case.

A national law protecting abortion rights therefore makes sense. And after last week’s argument before the Supreme Court in the Dobbs v Jackson Women’s Health Organization case showed how endangered Roe v Wade is, Democrats stepped up support for one. On Sunday, for example, Senator Amy Klobuchar (D-Minn.) Spoke out on “Meet the Press” against the passage by state legislatures of the country of a “patchwork” of laws, many of which restrict or prohibit abortions.

“The healthiest way to get there right now would be to raise this issue in the US Senate to codify Roe v. Wade into law,” Klobuchar said.

Senate Majority Leader Charles E. Schumer (DN.Y.), for his part, said he would allow a vote on the Women’s Health Protection Act, a bill that would codify Roe and would keep abortion legal across the country, “for the very near future.”

But there is a problem. A big problem. Neither the Women’s Health Protection Act nor any other bill guaranteeing access to abortion is likely to be enacted unless something drastically changes in Washington.

The problem, of course, as usual, is filibuster.

It is not that Americans would not approve a law protecting the right to abortion. According to the Pew Research Center, 59% of American voters think abortion should be legal in all or most cases and only 39% think it should be illegal.

And his not that the bill lacks support in Congress.

The House, in fact, has already passed the Women’s Health Protection Act, which is in some ways even stronger than Roe vs. Wade. (Among other things, it empowers the US Department of Justice to enforce its provisions.)

The Senate could also likely muster a majority in favor of a bill to codify Roe, after a few Democrats defected and a few Republicans (and if some concerns of pro-choice Republicans are resolved).

But unfortunately, the Senate does not operate by majority.

The practical reality of filibustering is that it takes the support of 60 senators for most bills to become law. This is the number of votes required – three-fifths of the entire Senate – to end debate and proceed to an ascending or descending vote.

And there’s virtually no chance that the Women’s Health Protection Act or any pro-choice variant will have that level of support.

Of course, the Senate could theoretically remove the filibuster – or change it in a number of ways. It would make many progressive Democrats very happy.

“It is once again that we see the filibuster blocking the will of the majority,” Senator Elizabeth Warren (D-Mass.) Told MSNBC last week. She noted that the Women’s Health Protection Act “is something we should be able to present to the United States Senate and vote on.”

And while there aren’t enough votes right now to change the filibuster rules, that could change.

“If the court overturns Roe v. Wade, the floodgates will open and there will be a different political calculation on obstructionism than there is now,” Nancy Northup, president of the Center for Reproductive Rights, told me. .

We will see. Maybe yes. I am skeptical.

I’m also realistic enough to know that removing or changing filibuster would be a mixed blessing for Democrats. It could help in the short term – and could propel the Women’s Health Protection Act, which would be a very good thing. But Democrats will suffer when their opponents are in power.

The point is, Congress is polarized, crippled, and generally dysfunctional for a multitude of reasons – and that only increases the relative power of the newly confident majority of six members of conservative Supreme Court justices. At the moment, they have little reason to moderate their positions or compromise or soften right-wing positions on issues such as affirmative action, gun rights, labor and abortion.

Congress can be a counterweight to an activist tribunal, but only if it can function effectively and do the job.

Nicholas Goldberg is associate editor and opinion columnist for the Los Angeles Times.

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