President Joe Biden’s reelection campaign is promising to impose an outcome-based litmus test on the Supreme Court and to establish abortion until birth as a constitutional right.
And he thinks it’s cute.
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The laser eyes are a nod to an internet meme launched by his fans called “Dark Brandon.” This promise really is dark.
First, consider what it would mean, policy-wise, to “bring back Roe.” Thankfully, Planned Parenthood v. Casey and other cases trimmed Roe, allowing some restriction on abortion before Dobbs v. Jackson Women's Health Organization finally struck down the law.
But Biden isn’t planning to bring back the pre-Dobbs status. He wants to turn the clock back to 1973. That’s barbaric and extreme.
Roe v. Wade in 1973 said that a state could not provide even the slightest regulation of abortion. Parental notification? Nope. Health regulations to protect the mother? Unconstitutional under Roe.
Abortion in the first trimester was a more absolute right under Roe than freedom of speech ever has been.
Only in the second trimester of pregnancy, under Roe, were states allowed to create regulations to protect maternal health. But protecting the unborn, or ensuring informed consent, was not permitted. That meant that a baby in the seventh month of pregnancy could be aborted for any reason whatsoever — because she was a girl, for instance.
In the third trimester, the Roe court dictated, states were allowed to consider the baby, who could survive on her own outside the mother’s womb, a “potential” human. Thus they were allowed to protect that baby, unless protecting that baby from abortion would risk the “health” of the mother. Given that late-term abortionists swear that every pregnancy threatens the health of the mother, this was a 100% loophole.
Under Roe, abortion was a constitutional right up until birth. States couldn’t prevent sex-selective abortion of perfectly healthy viable babies, and they couldn’t even regulate most abortions for the sake of mothers’ health.
That’s only the first problem with Biden’s promise to Bring Back Roe.
The second problem is that Roe was deeply undemocratic. Roe struck down the abortion laws of just about every state. It stripped elected officials, or even voters in referenda, from passing abortion laws.
The third problem is that a president promising to overturn precedent is the sort of thing that would cause a nuclear meltdown among political commentators and law school professors: Promising that in a second term, you only appoint judges who oppose current jurisprudence doesn’t fit into the norms of American politics.