‘Codify Roe’ Is Biden’s Euphemism For Democrats’ Atrocious Aim: Unregulated Abortion Anywhere, Anytime

With midterms just a month away, plain-speaking Joe Biden took to Twitter late Sunday to spread some malarkey about abortion.

“My dad used to say, ‘Joey, don’t compare me to the Almighty. Compare me to the alternative,’” the master of Biden’s Twitter domain said. “And here’s the deal: Democrats want to codify Roe. Republicans want a national ban on abortion. The choice is clear.”

While some Democrats may want to codify the Roe-Casey law of abortion, and while some Republicans may desire a national ban on abortion, the current political scene tells a vastly different story — one in which Democrats demand an unfettered state constitutional right to abortion that far exceeds what Roe and Casey held that the U.S. Constitution guaranteed. Abortion on demand, at any time, for any reason, without informed consent or parental notification, without the safety and medical licensing regulations currently governing in most states, and paid for by taxpayers — this is the push presently underway in several states by mainstream Democrats.

Michigan best exemplifies this reality, with Democrats in this Midwestern state pushing a two-prong approach to achieve that end goal. First, Democrat Gov. Gretchen Whitmer petitioned the Michigan Supreme Court to declare that the state constitution includes a right to abortion. But as a fail-safe, Democrats put abortion on the ballot for this November’s election, asking Michiganders to vote to amend the state constitution to expressly declare a right to so-called “reproductive freedom” — an implicit acknowledgment that Michigan’s constitution does not currently address abortion.

The proposed constitutional amendment would declare that “every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.” The amendment would further prevent the state legislature from passing any law affecting the broadly defined “reproductive freedom,” absent “a compelling state interest.” 

This “compelling state interest” standard, also known as “strict scrutiny,” far surpasses the standard that governed under Roe-Casey, but that reality is hard to convey in soundbites, given the legal nuance “standards of review” inject into discussions of constitutional law. Constitutional scholar Elizabeth Kirk, who currently serves as a research associate at the Catholic University of America’s Columbus School of Law and the director of the Center For Law and The Human Person, explained the significance of the “strict” “compelling state interest” standard of review when she testified in support of Kansas’s Value Them Both constitutional amendment before the state’s Senate Judiciary Committee and House Federal and State Affairs Committee. 

Kirk’s testimony is a must-read for anyone who seeks to understand the extreme abortion regime Democrats seek to install on Americans through a “strict scrutiny” standard cemented in state constitutions by amendment or judicial intervention. And as Kirk detailed in her testimony, in states where the courts have discovered a so-called state constitutional right to abortion and applied that “strict scrutiny” standard, courts have struck down laws that the public overwhelmingly supports. 

For instance, state courts in Alaska, Florida, Tennessee, Massachusetts, and New Jersey have all struck down legislation requiring parental notification or consent based on the respective states’ constitutions. Iowa and Tennessee laws establishing waiting periods and/or informed consent also failed in court based on state constitutional challenges.

In Montana, the law requiring physicians to perform abortions succumbed to a constitutional challenge, and courts in Alaska, California, Massachusetts, Minnesota, and New Jersey have compelled such funding based on their interpretation of the states’ constitutions. In Kansas, notwithstanding the fact that the overwhelming majority of Americans — and nearly all other countries in the world — oppose second- and third-trimester abortions, the Kansas Supreme Court held that the state legislature’s ban on one type of second-trimester abortion, live dismemberment abortions (those in which human beings are killed by being ripped apart limb by limb), violated the state constitution. 

If a state constitutional right to abortion exists, as Michigan Democrats claim with Whitmer insisting so in her court filings, or if the Democrats’ abortion amendment passes, then abortion regulations will be impossible to enact. This will be true no matter how widely supported those regulations are, such as late-term abortion bans, parental notification laws, and even health and safety standards. And it will be true no matter how many Michiganders support the proposed legislation and no matter how many legislators the people elect to advance their preferred policies on abortion.

Democrats hide this reality by using the legalese of “compelling state interest” and pushing dishonest soundbites, such as those Biden peddled in his recent tweet. And no wonder: The media will not expose their extreme views on abortion and, as the failure of the referendum on Kansas’s Value Them Both constitutional amendment shows, the tactic works.

But contrary to Biden’s claim, Democrats are not seeking to “codify” abortion law as it existed prior to Dobbs overturning Roe and Casey. Today’s mainstream Democrats seek to cement an extreme regime of abortion on demand, for any reason, at any time, and paid for by taxpayers, in the states’ constitutions.

It is understandable then, that Biden doesn’t want Democrats’ abortion stance compared to the Almighty! 

Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.

Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.

As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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