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This is Question of the Week, from BU Today.
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Would codifying Roe v Wade protect abortion rights?
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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.
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>> 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.
>> Happy to be here.
So to clarify, Roe versus 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, many states will not, and
you'll have the checkerboard we have right now.
>> Have Democrats proposed codifying Roe v.
Wade before and why weren't they successful?
>> Yeah, that's a great question.
So, one thing that's important to understand is that when
people talk about codifying Roe versus Wade,
you have to understand that we haven't had Roe vs Wade since 1992.
Because in 1992, the Supreme Court decided Planned Parenthood
versus 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.
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,
we haven't really had Roe in its full form since 1992.
>> Linda, would you mind summarizing, the Hyde [Amendment] and [Planned Parenthood
versus Casey] for those of us who >> aren't sure what those are?
>> So soon after Roe 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 was particularly zealous in trying to stop abortion.
But he recognized that the most effective way he could do so
was 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 you there's no exceptions or rape or what have you.
So the court 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 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 TRAAP 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 talked about abortion 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.
>> You mentioned the act before Congress right now,
the Women's Health Protection Act.
Can you talk a little bit about that?
>> 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, TRAAP 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 by saying: pre-viability,
if 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 tele-medicine 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 strict scrutiny approach
to fundamental rights, which case he 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.
>> So if the Democrats aren't successful,
where does that leave abortion access in this country?
>> Right? 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 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, you know,
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 a 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.
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>> 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.
>> Thank you. [MUSIC]
>> 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,
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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