Can Joe Biden do anything to preserve US abortion rights?

President warns Supreme Court against threatening ‘stability of our law’

Joe Biden addresses reporters at a Lockheed Martin factory in Troy, Alabama
Joe Biden spoke out after leaked document revealed the top court is considering scrapping Roe v. Wade decision
(Image credit: Andi Rice/Bloomberg via Getty Images)

Joe Biden has responded to the Supreme Court’s expected overturning of US abortion rights by insisting that “a woman’s right to choose is fundamental”.

Speaking after a leaked document revealed that the country’s highest court is considering scrapping the decades-old Roe v. Wade decision, the president warned that the “basic fairness and the stability of our law demand that it not be overturned”.

A “whole range of rights are in question”, said Biden, and the leaked court draft opinion would represent a “fundamental shift” in US law if upheld.

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Biden has previously pledged to push legislation through Congress to protect abortion rights in the event that the Supreme Court repealed the decision. But “in reality”, he has “no chance”, given the Democrats’ wafer-thin majority in the lower house, said The Times US editor David Charter.

‘Egregious breach of trust’

The Supreme Court chief justice has ordered an investigation into the leak of the draft opinion, in which Justice Samuel Alito described the original Roe v Wade decision as “egregiously wrong from the start”.

The “authenticity of the document”, leaked in full to Politico, had been called into question. But Chief Justice John Roberts yesterday confirmed that the draft was the real deal, while stressing that it “does not represent a decision by the court or the final position of any member”.

Announcing the investigation, Roberts told reporters that the unprecedented leak represented an “egregious breach of trust” and a “betrayal of the confidences of the court” that “was intended to undermine the integrity of our operations”.

The opinion is dated February and “it is not known whether it has changed since then or whether it may yet change”, The Economist said. But should the court repeal Roe v. Wade, “the repercussions will be momentous”.

“Trigger laws” would mean “abortion would become illegal in half of America’s states”, the paper continued. And “poorer women will bear the brunt of all this”, since federal funds used to supply alternatives, such as at home medication, “cannot be used for abortion”.

‘Perilous political road’

Biden yesterday “appealed to voters to protect abortion rights by backing candidates who support them” in November’s midterm elections, Reuters said.

The Democrat leader also promised to “​​respond once the Supreme Court formally rules”, the news agency added.

Biden told reporters that if Roe v. Wade were overturned, “it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose”.

Scrapping the 1973 ruling would pave the way for individual states to return to deciding whether to ban abortion and how to regulate it.

So “it will fall on voters to elect pro-choice officials this November”, said Biden, who added that Congress needs “more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law”.

But while the president’s rhetoric around abortion rights is strong, his ability to pass meaningful legislation is far weaker.

Polls suggest that Biden is at risk of losing his slim majority in Congress, which is already “unlikely to pass a law to protect abortion rights”, The Economist said. And while Democrats have “passed a bill that would guarantee them”, it “has little chance in the Senate”.

An alternative approach, championed by Democrats including Bernie Sanders and Alexandria Ocasio-Cortez, would be to “codify the landmark decision” into law and beyond the remit of the Supreme Court, said The Washington Post.

“Democrats have quickly unified behind the idea of codifying Roe in light of the draft opinion,” the paper added. But “efforts at codifying the Supreme Court decision from nearly 50 years ago have fallen short to this point”.

Anyone seeking to pass “such legislation faces a long and perilous political road”, said the New York Post. Potential risks include the legislation being blocked by a filibuster.

But Biden has “said he wasn’t ready to call for an end to the filibuster to push for abortion rights legislation”, CNN reported.

All the same, The Telegraph’s Washington editor Rozina Sabur suggested that behind closed doors, “few Republicans in Washington are likely to be celebrating the controversial decision”, which is a potential “gift for Biden” ahead of the midterms.

The leaked opinion “puts the Supreme Court firmly at odds with the overwhelming majority of Americans”, Sabur wrote, and may “torpedo” the Republicans’ “hopes of gaining sizeable majorities in Congress”.

Barack Obama’s former chief strategist David Axelrod told Sabur that the court ruling could “galvanise women and, particularly, young voters who seemed inclined to sit out” the election until now, winning more votes for Biden.

But what he can do, if anything, to fulfil these voters’ hopes for the protection of reproductive rights remains to be seen.

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