‘Codifying’ Roe v. Wade Will Do Nothing To Save It From Conservatives

Sometimes, you can see the pollsters at work during the political campaigns. At last night’s Democratic debate, most of the field adopted some specific language to talk about the frontal assault on women’s rights currently underway by Republican politicians and judges. Most of the candidates came out in favor of “codifying” Roe v. Wade at the federal level, as if that would put a stop to the anti-choice laws and TRAP laws sprouting up among the various states. I’m sure “codifying” Roe polls very well among liberal non-lawyers who do not really know the difference between a law and a right, but think the former is somehow more secure than the latter.

Passing a federal law that protect’s a woman’s right to choose is not a bad idea. It is, perhaps, something that should have been done a long time ago, and something that would have been done a long time ago if Democratic politicians hadn’t spent the past 40 years acting like a woman’s bodily autonomy is an unfortunate externality of the human condition.

But given where we are now, given the kind of rabid conservative judges and justices Republicans have successfully installed throughout the federal judiciary, a federal law protecting abortion will do nothing to blunt the conservative onslaught against women’s rights. It’s like seeing a car barreling down upon you and erecting a speed bump instead of a brick wall.

You do not have to be John C. Calhoun to dream up the “state’s rights” arguments that will be leveled at any federal abortion law. Conservatives already think they have a state’s rights presumption to attack the basic right to privacy as articulated by Constitutional precedent that we have now. Ensconcing that right as a federal statute enhances their argument, as opposed to foreclosing it. The (red) states will say that the federal government has no authority to dictate how it handles, say, licensing of medical professionals within their state. They’ll say that the federal government has no authority to mandate how they provide “health care.” If that argument seems familiar to you, it should, because the way red states fight the Affordable Care Act is precisely how they’ll fight any federal women’s rights laws.

Will the states be wrong? Sure. Will conservative justices on the Supreme Court care? No, they will not. The Democrats running for President seem either oblivious or ignorant to how partisan and theocratic the Supreme Court has become and how it will likely stay until major court reform is undertaken. The conservative majority on the Supreme Court will have no problem invalidating a federal abortion law just as soon as Mississippi asks them to.

In fact, we already have precedent for how they’ll do it. In City of Boerne v. Flores, the Supreme Court, in 1997, ruled that the Religious Freedom Restoration Act could not be used to overcome a local ordinance. Anthony Kennedy, joined by William Rhenquist, AND John Paul Stevens, AND Scalia and Thomas, AND Ruth Bader Ginsburg, ruled that the 1993 RFRA was an unconstitutional use of Congress’s enforcement powers under the 14th Amendment.

Folks, if you have Scalia and Thomas and Ginsburg ruling that the 14th Amendment could not change local ordinances to support so-called religious freedom, can you IMAGINE what Roberts and Gorsuch and alleged attempted rapist Brett Kavanaugh will do to a statute mandating a women’s right to choose over state objection?

Again, it’s not that the codification of Roe is a poorly thought out plan, it just fails to recognize how deeply the Court has already pre-judged the issue. Senator Kamala Harris, whose thoughts about this are clearly the most developed among the Democratic candidates, explained that her codification of Roe would include a “pre-clearance” scheme that required the states to get permission from the federal government before changing its laws on abortions or access to them.

It’s a great plan. Pre-clearance worked fantastically when it was a part of the Voting Rights Act.

I say “was” because John Roberts totally nuked pre-clearance in 2013 in Shelby County v. Holder. The whole point of that disastrous decision was so Roberts could declare victory over racism and rule that pre-clearance was unconstitutional.

If John Roberts was willing to nuke pre-clearance for voting rights, you can best believe he will nuke it for women’s rights too. These conservatives do not give a damn what the American people, through their representatives in Congress want. They care that the Republican agenda and their conservative ideology win the day.

Which isn’t to say that there is nothing Democrats can do to protect (or, more accurately, RESTORE) a women’s right to choose. The statutory process is of no more use against Republican jurists. What is needed is a Constitutional Amendment, perhaps and Equal Rights Amendment, that “codifies” a woman’s right to health care and reproductive choice in our Constitution instead of merely in our code.

Rights are stronger than laws. Rights are what get bad laws invalidated.

Currently a women’s right to choose flows from the right to privacy and the Equal Protection clause. One would think that would be enough if one does not waste a lot of time talking to FedSoc people. But once you do talk to FedSoc people, one realizes the sniveling contempt they have from women’s rights that are not directly tied to the 19th Amendment. Republicans are, more or less, on board with the notion that women get to vote (which is more than what Republicans will agree to for black people, even though the 15th Amendment is sitting right there), but nearly any other right is treated as “one option among many” when it comes to women. If we want to protect women from current and future Republicans, than a Constitutional Amendment is the way to go.

I know what centrist Democrats will say, since it’s the thing centrist Democrats seem to think is a good argument: oh, that sounds great but we need something NOW! For some reason, moderates have convinced themselves that doing a thing that Supreme Court and Mitch McConnell will not approve of, BUT NOW, is preferable to doing the thing that obviates the need for McConnell’s or the Court’s approval, because that will take too long. As a progressive, I feel like I’m constantly trying to figure out a long term weight loss and exercise program, while Amy Klobuchar just screams “STOP EATING, FATTY” in my ear.

But if we actually want to protect women’s rights, we have to accurately understand who threatens those rights. And, right now, the biggest threat comes not from state lawmakers in Georgia or Ohio, it comes from Republicans in robes at One First Street. If you do not a have a plan to protect abortion rights from John Roberts, than you do not have a plan.

Codifying Roe v. Wade is absolutely necessary. It should be called “The 28th Amendment.”

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.