Codify Roe vs Wade: What does it mean and how can it be done?

The stripping of federal abortion protections by the Supreme Court last week has people considering what actions can be taken to enshrine access in law. 26 states are set to outlaw the medical practice and put more than 30 million women in a dangerous position with regard to pregnancies.

However, there are ways of getting federal abortion protections outside of the Supreme Court. This is because the Supreme Court rules on whether certain cases are constitutional matters or not, but not about other laws. This is called codification.

More specifically, to codify something is to “arrange laws or rules into a systematic code,” according to Cornell Law’s Legal Information Institute. A codification of abortion protections would supercede state laws banning abortion and would be outside of the remit of the Supreme Court to overturn.

The best opportunity to codify abortion protections was in Barack Obama’s first term as president in which he had a Senate supermajority. In his campaign Obama told Planned Parenthood, “The first thing I’d do as president is sign the Freedom of Choice Act. That’s the first thing that I’d do.” This plan was supposed to prevent the state from interfering in a woman’s right to an abortion.

Soon into his presidency, Obama backed down from this pledge. Speaking after his first 100 days in office, he said, “I believe that women should have the right to choose. But I think that the most important thing we can do to tamp down some of the anger surrounding this issue is to focus on those areas that we can agree on.”

So what options do the Democrats have in 2022 to protect the right to bodily autonomy?

Abolish the filibuster

The filibuster is the Senate practice of preventing bills from being passed without meeting a 60-vote threshold. If the Democrats want to codify abortion protections this will need to be bypassed, as no Republican senator is going to vote in support of it. It could be possible to legislate for the removal of the practice.

President Biden has said he would be in favour of making an exception to the filibuster for this case. At a speech during the recent NATO summit in Madrid the president said, “If the filibuster gets in the way – it’s like voting rights – it should be we provide an exception for this.”

However, that would still need the support of all 50 Democrat senators. Sens. Joe Manchin and Kristen Sinema have been adamant that they would not change rules about the filibuster. If they are not onside then this measure will fail.

Add more judges to the Supreme Court

There is also the option to add more judges to the Supreme Court to overwhelm the conservative voices. This was floated by Reps. Alexandra Ocasio-Cortez and Ilhan Omar in recent tweets.

However, the White House has pushed back against this measure for fear it could undermine support for the institution - if that hasn’t been accomplished already.

“That is something that the president does not agree with,” White House press secretary Karine Jean-Pierre told reporters when asked about such a reform last weekend, “That is not something that he wants to do.”

The Democrats could be left hoping for a resounding victory in the midterm elections which would give them the raw votes to pass the protections, but polling suggests the party is in for a stinging defeat.