The Senate debate over how to codify Roe v Wade, explained

Amid threats over the last year that the Supreme Court might abolish the right to an abortion, Democrats and advocacy groups have used an imperfect but popular phrase as a synonym for protecting reproductive freedom: “codify Roe.”

“When we go back to Washington, we will be putting Roe v. Wade codification on the floor of the House to make sure that women everywhere have access to the reproductive health that they need,” House Speaker Nancy Pelosi pledged last September. When a draft of the Dobbs v. Jackson decision leaked in May, President Joe Biden stressed the need for “legislation that codifies Roe, which I will work to pass and sign into law.”

A bill introduced earlier this month aims to do exactly that, writing into law the holdings of Supreme Court decisions that guaranteed the right to contraception and to abortion before fetal viability, usually in the 22nd to 24th week of pregnancy.

But translating abortion-related court decisions into legislative language that everyone can agree on has turned out to be more difficult and controversial than lawmakers have publicly acknowledged.

The bill, known as the Reproductive Freedom for All Act, is a bipartisan effort, sponsored by Republican Sens. Susan Collins and Lisa Murkowski and Democratic Sens. Tim Kaine and Kyrsten Sinema. It has sparked outrage among the leaders of abortion rights groups: They argue it would not actually codify key Supreme Court decisions and could even be a step backward from what Americans had before Dobbs. The measure does much less to protect abortion rights than the Women’s Health Protection Act, abortion rights groups’ favored bill, which passed the House but has failed twice in the Senate.

Their reaction underscores a key debate over Democrats’ legislative strategy in post-Roe America. Even as Democrats say they want to codify Roe, national reproductive rights groups and their allies in Congress see a political window to move beyond Roe’s weak framework and more meaningfully protect abortion access.

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These groups, including Planned Parenthood, NARAL Pro-Choice America, the Center for Reproductive Rights, and a dozen others, think it’s unlikely that the Kaine-Collins bill could attract much Republican support beyond its two co-sponsors. Energized by recent pro-abortion rights victories, they express confidence about sticking to their original plan: elect two more senators, maintain control of the House, and then overturn the filibuster to pass the Women’s Health Protection Act, which would not only restore the pre-Dobbs status quo but dismantle a slew of state restrictions on abortion.

“We have this really clear political opportunity to realize some big, big wins,” NARAL president Mini Timmaraju said. “And we owe these folks who are at risk of losing their lives because of things like ectopic pregnancies, we owe them the biggest, boldest solution possible.”

The Kaine-Collins bill, by contrast, is intentionally less ambitious. “It’s like a time machine bill,” Kaine said. “We wanted to put something on the table that would give back Americans exactly what they had, and lock in a statutory protection that women had relied on for 50 years. Not expanding, not subtracting.”

Vox spoke with top Democratic lawmakers, legislative aides and strategists, leaders of reproductive rights groups, and legal scholars to understand the choices and challenges ahead for federal abortion policy. The interviews illuminated a simmering debate over whether it’s worth trying to return to the legal frameworks of June 23, 2022 — the day before Dobbs was decided — and deeper divisions over what baseline abortion rights the federal government should, or realistically can, guarantee.

The Reproductive Freedom for All Act, explained

In addition to enshrining the right to contraception, the bill prohibits state rules that impose an “undue burden” on abortion before fetal viability, the same standard established by the Supreme Court in its 1992 Planned Parenthood v. Casey decision.

Outright bans are illegal under this undue burden framework, but restrictions that significantly curtail access to abortion have often been upheld. The Reproductive Freedom for All Act also affirms health care workers’ right to refuse to provide abortion for religious reasons — something currently allowed in over 40 states, and a key demand from its Republican co-sponsors.

The bill sponsors readily admit there are not 60 votes in the Senate to pass the legislation, and Collins, Murkowski, and Sinema do not support overturning the filibuster. But the sponsors say they wanted to signal that a bipartisan majority of their chamber supports codifying Roe. (Kaine and Sinema also support the Women’s Health Protection Act, but Collins, Murkowski, and Democratic Sen. Joe Manchin opposed that legislation, depicting it as too expansive.)

Kaine compared his bill to lawmakers who fought for gun control when they also lacked 60 votes. “We spent a decade pushing for that, and then tragedies made the Senate move,” he said. “I think life post-Dobbs is a series of tragedies, and we have a sense that real life is going to push votes our way.”

The response to Kaine-Collins from reproductive rights groups and some Democratic lawmakers has ranged from chilly to hostile, with objections falling into four general buckets, of varying legitimacy.

Would the bill actually codify Roe?

The first objection — voiced by virtually every national advocacy group for reproductive rights — is that the Reproductive Freedom for All Act does not include explicit enough language to bar pre-viability abortion bans, like the 15-week ban in Mississippi that sparked the Dobbs case to begin with. For this reason, they say, the bill doesn’t actually codify Roe v. Wade.

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This is the most controversial objection. The bill clearly states a government cannot impose an undue burden on a woman’s right to an abortion before fetal viability, and that fetal viability is determined by a woman’s attending doctor, not the state. While it’s likely that medically unnecessary restrictions such as mandatory waiting periods could withstand the murky undue burden standard, an outright ban is a different question.

Kaine says the bill was specifically written to prevent pre-viability bans. “I practiced civil rights law for 18 years and virtually any intellectually honest judge would look at this and say Congress says you can’t impose an undue burden, which a ban clearly is,” he said. “While you may have rogue judges here or there, returning to the undue burden standard would give the judiciary not just the tools but also the mandate to throw out those kinds of laws.”

So what’s going on? Pressed for answers, reproductive health groups and senators pointed to a concurring opinion in Dobbs from Chief Justice John Roberts. Writing alone, Roberts argued that the right to an abortion does not necessarily need to be paired with fetal viability. Roberts suggested Mississippi’s 15-week ban could potentially be legal, as long as a woman had a “reasonable opportunity” to get an abortion before then.

“Senator Kaine’s legislation is missing the core protection of Roe, which prohibited any ban on abortion before viability, and replaces it with a dangerous legal standard that could permit extremist state laws like Mississippi’s 15-week ban,” Sen. Elizabeth Warren told Vox in a statement. “This bill is closer to codifying Chief Justice Roberts’s concurrence in the Dobbs decision than it is to codifying Roe, and I do not support it.”

But the idea that John Roberts’s interpretation of the undue burden standard — which was rejected by the Court’s five-member conservative majority — would triumph now is unpersuasive, said several legal experts.

Ben Eidelson, a Harvard constitutional law professor, said the Reproductive Freedom for All Act “very clearly precludes pre-viability bans” and noted the Roberts concurrence “really has no legal relevance here.”

The majority opinion in Dobbs — not the concurring one — would define the legal backdrop for interpreting what Congress does next, Eidelson said. “It would be extraordinary for the Court to turn around, after Congress relies on that, and say that actually Roe and Casey meant something completely different than they themselves had said or anyone ever thought,” he added.

Sherif Girgis, a Notre Dame law professor who argued the Supreme Court should overturn Roe, said the Kaine-Collins bill prohibits abortion bans “even a little bit” before viability and “there is no serious argument to the contrary.”

Girgis noted that “every judge at every level of the judiciary” who has considered the abortion question in the last 30 years — including very conservative judges like James Chiun-Yue Ho on the Fifth Circuit and Amul Thapar on the Sixth — has held that Casey’s undue burden standard precludes any pre-viability ban, and that even Roberts didn’t disagree in Dobbs.

Rachel Rebouché, the dean of Temple Law School and co-author of an influential paper on coming legal battles in a post-Roe America, also said she doesn’t see how Roberts’s concurrence would be significant here. “Even if the bill is not explicit as you might want it to be, it is pretty explicit,” she said. “And even if John Roberts argues that Casey never necessarily intended the viability line to be the line Roe prohibits, there is no other vote on the Court for that view.”

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There are a few dissenting scholars. Leah Litman, a constitutional law professor at the University of Michigan, argues the operative section of the Kaine-Collins bill needs to be more specific, given Roberts’s opinion in Dobbs and because states like Texas and Mississippi, and conservative groups, have been arguing that undue burden doesn’t necessarily prohibit pre-viability bans.

“That gives the Court wiggle room to say it’s not so clear,” she said. “It’s a sloppy bill that is foolish and naive and fails to take the federal courts as they are.”

Could the bill pass and withstand a court challenge?

The second objection is practical: The Kaine-Collins bill doesn’t have the votes. Timmaraju, president of NARAL, describes the Reproductive Freedom for All Act as a “political stunt that should not be taken seriously” given that its sponsors have not backed overturning the filibuster.

Advocates say their best path to protect abortion rights is to elect two more Democratic senators to overcome its last failed vote of 49-51. Democrats are favored to at least retain control of the Senate next year, but to lose the House. Performing well enough in November, though, doesn’t mean the filibuster’s death is a foregone conclusion; just as many lawmakers pledged support for Medicare-for-all only when the possibility seemed remote, more objections to ending the filibuster might emerge if it were a real possibility.

There’s a third objection: that the Reproductive Freedom for All Act is inadequate because it would invariably return questions back to the same anti-abortion federal judiciary that just overthrew Roe. This objection is a little tricky, since the Women’s Health Protection Act would also get embroiled in legal challenges, and be reviewed by those same hostile judges.

But advocates say at least the Women’s Health Protection Act is much more specific on what types of restrictions would violate the law, an improvement over the “undue burden” standard that leaves so much to court discretion.

Mary Ziegler, a professor at the UC Davis School of Law who has authored several books on reproductive rights history, said federal courts would likely strike down both bills because Congress has limited authority to legislate in this area.

“It’s either going to be relying on Section 5 of the 14th Amendment, or the commerce clause, and quite likely you’ll get a conservative Supreme Court that says Congress doesn’t have the authority to do either of those things,” she said. “Which is a reason why there will have to be some kind of conversation about court reform, because there would be real jeopardy for any federal legislation protecting abortion rights.”

Sarah Standiford, the national campaign director for Planned Parenthood Action Fund, agreed there are real hurdles right now for federal bills. “I think there is a hunger for Congress to solve this problem, but the solution is not simple, and the solution is going to be using every avenue we have, and the fact is many of those avenues are at the state level,” she told Vox. “We have to be honest with ourselves about the limitations that structurally exist in Congress.”

Advocates want to focus beyond Roe and Casey

The final category of objection is the biggest one: that restoring the Roe and Casey standards would not do enough to address the abortion care crisis in the United States. Before Dobbs, it was perfectly legal to enact medically unnecessary restrictions that crippled abortion clinics and which made terminating pregnancies practically too difficult to do. The overturn of Roe has wiped the slate clean, and activists see an opportunity to fight for stronger protections.

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In explaining her objection to the Kaine-Collins bill, Sen. Tammy Duckworth (D-IL) told Politico it doesn’t “fully [guarantee] a woman’s right to reproductive choice.” Warren said returning to the status quo before Dobbs “is not good enough.” A joint statement from 15 reproductive rights, health, and justice groups stressed they’re looking for “legislative solutions that make abortion truly accessible.”

Timmaraju, NARAL’s president, emphasized that activists have developed a much clearer understanding of how restrictions permitted under the undue burden standard can decimate access to care. “To those who say we want to go back in a time machine to the day before Dobbs, that was still a bad day,” she said.

Democratic senators and activists also stress the Kaine-Collins bill does not explicitly prohibit SB 8, the novel citizen-enforced abortion ban that Texas passed last September and which several states are looking to copy.

The Women’s Health Protection Act doesn’t explicitly bar these bans either, but does include language its drafters hope could grant advocates grounds to challenge the “bounty hunters” in court.

Kaine, for his part, thinks his bill would protect against laws like SB 8. “A bounty hunting law is an undue burden, and a six-week ban is before viability,” he said. “Our bill would wipe out all those state schemes.”

Eidelson, the constitutional law professor, thinks that if Congress passed the Reproductive Health for All Act and if the Supreme Court upheld it (both big ifs), that would, in fact, substantially undercut SB 8 and similar laws. Much of the chilling effect in Texas over the last year stemmed from the interaction of SB 8’s threat of liability and pending uncertainty over Roe v. Wade.

The Kaine-Collins bill’s opponents aren’t just disinclined to accept the pre-Roe status quo — they’re less certain they need to compromise. An increasing share of Democrats and independents say the Dobbs decision has motivated them to vote in November. Advocates are energized by the recent ballot victory in Kansas, two special elections where Democrats outperformed their 2020 vote share, and midterm polls that show voters are concerned about abortion rights. Democratic Senate staffers say privately that there’s no reason to tamp down on bold rhetoric now, and there will be time to moderate later if the political landscape shifts.

“I think the thing that is most useful for abortion rights advocates to be doing now is to be as aggressively chest-thumping as possible,” one senior aide told me, speaking anonymously to candidly describe Senate discussions. “It helps to position ourselves so that when the next meltdown comes, what emerges out of it will be as strong as possible.”

The strategically optimal path to federal abortion rights is for now unsettled, but the stakes are high. Ziegler, of UC Davis, said she’s not surprised the national groups aren’t defending bills to codify Roe and Casey now that those decisions have been overturned.

“I do think Casey from the standpoint of most national groups was never good enough,” she said. “I also think from the standpoint of a person of color living in Arizona with a fetal personhood law, Casey probably looks awfully good right now.”