Could Biden pass abortion laws before Supreme Court overturns Roe?
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A ban on abortions after 15 weeks gestation in Mississippi could soon become the catalyst that overturns Roe v. Wade, the historic U.S. Supreme Court decision that legalized abortion in 1973.
While a written decision remains weeks away from the Supreme Court, a bombshell report from POLITICO’s Josh Gerstein and Alexander Ward has revealed an initial decision memo by Justice Samuel Alito that would criminalize access to abortions across the country.
The nearly 100-page memo was published late Monday evening after being circulated to the remaining Supreme Court Justices on Feb. 10.
Authored as “The Opinion of the Court,” the report represented an incomplete, non-binding document that has yet to be finalized. For progressives, that means mobilizing public pressure on any justices still on-the-fence, a move supported by President Joe Biden.
Alito’s pointed to a brief supported by Justice Clarence Thomas, falsely asserting that a primary motive of “proponents of liberal access to abortion…have been motivated by a desire to suppress the size of the African-American population.”
Alito declares in his memo that “The Constitution makes no reference to abortion…” Alito is correct, but fails to note that the Supreme Court has decided on plenty of issues not referenced in the centuries-old document, including racial equality, the right of women to vote, desegregation, and same-sex marriage.
The draft also encourages “safe haven” laws, a theory strongly supported by Justice Amy Coney Barrett, which, according to the memo, would “generally allow women to drop off babies anonymously.” Not only would safe haven laws disproportionately increase the number of orphans in America—where recent numbers estimate over 400,000 children are currently in the care of the government—but the cost of providing this kind of service significantly outweighs the economic impact of providing abortions.
For Republicans, the memo leaker is America’s Most Wanted
Instead of celebrating a conservative pipe dream decades in the making, the right is condemning the “leak” of the draft memo.
Within hours, Fox News was running chyrons like "LEAK HAS POTENTIAL TO IRREPARABLY HARM COURT FOR DECADES TO COME," and Laura Ingraham was calling for the FBI to investigate the document's leak.
The response from anti-abortion organizations like Operation Rescue (OR) and the Progressive Anti-Abortion Uprising (PAAU) was particularly dark.
“We will DANCE on the grave of Roe vs. Wade,” Randall Terry (OR) wrote in a press release issued to The Blueprint. “This is our ‘D-Day’ for the pro-life movement,” he added. Terrisa Bukovinac of the PAAU noted that “Roe v. Wade will soon be exactly where it belongs, on the ash heaps of human history.”
While anti-abortion advocates appear galvanized by the draft memo, the possible decision by the Supreme Court could also give Democrats a core issue to focus on in garnering support in the fall midterms.
With Democrats weighing ending the filibuster, Biden signals a plan ahead
Shortly after the memo was published, Vermont Sen. Bernie Sanders tweeted that “Congress must pass legislation that codifies Roe v. Wade as the law in this country NOW,” adding that if they can’t come up with 60 votes in the Senate to pass that legislation, “we must end the filibuster to pass it with 50 votes.”
Ending the filibuster has been a contentious topic for moderate Democratic senators like Krysten Sinema and Joe Manchin. Despite its controversy, the idea of ending the filibuster has grown among Democrats over recent years.
Even former President Barack Obama has called for the end of the filibuster, a rule that requires 60 or more Senators votes to end debate and proceed to voting on an act of legislation.
On Tuesday, Chief Justice John Roberts issued a statement confirming the leaked draft was in fact genuine, but stipulated that “it does not represent a decision by the Court of the final position of any member on the issues in the case.”
Roberts has also directed an investigation “into the source of the leak,” calling the act an “egregious breach” of trust by the Court.
That same day, President Joe Biden noted that it remains unclear whether the draft memo “reflects the final decision of the Court.”
Biden, a former staunch pro-lifer, invoked the 14th amendment's prohibition on "government interference with intensely personal decisions."
In his statement, Biden wrote that after the Texas Heartbeat Act was passed, he directed both his Gender Policy Council and White House Counsel’s Office “to prepare options for an Administration response to the continued attack on abortion and reproductive rights…”
“We will be ready when any ruling is issued,” Biden wrote.
The decision will also mark the final docket for Justice Stephen Breyer, who is being succeeded later this year by Justice Ketanji Brown Jackson, the first Black woman in American history to be confirmed to the country’s highest court.