What Would It Mean to Codify Roe Into Law?

Following the Supreme Court’s decision to overturn Roe v. Wade, advocates and politicians are calling on states and Congress to codify Roe. But what does this actually mean for abortion rights? Abortion rights advocates are looking for alternative ways to protect a woman’s right to the procedure following the Supreme Court’s decision to overturn Roe v. Wade. Responding to the ruling by the majority conservative justices, President Joe Biden called on lawmakers to act. “Let me be very clear and unambiguous: The only way we can secure a woman’s right to choose and the balance that existed is for Congress to restore the protections of Roe v. Wade as federal law,” he said. But is enshrining abortion rights in legislation feasible? And why has it not been done before? The Conversation put these questions and others to Linda C. McClain, an expert on civil rights law and feminist legal theory at Boston University School of Law.

What Does It Mean to Codify Roe v. Wade?

In simple terms, to codify something means to enshrine a right or a rule into a formal systematic code. It could be done through an act of Congress in the form of a federal law. Similarly, state legislatures can codify rights by enacting laws. To codify Roe for all Americans, Congress would need to pass a law that would provide the same protections that Roe did – so a law that says women have a right to abortion without excessive government restrictions. It would be binding for all states.

But here’s the twist: Despite some politicians saying that they want to “codify Roe,” Congress isn’t looking to enshrine Roe in law. That’s because Roe v. Wade hasn’t been in place since 1992. The Supreme Court’s Planned Parenthood v. Casey ruling – which was also overturned in the latest ruling on abortion, Dobbs v. Jackson Women’s Health Organization – affirmed it, but also modified it in significant ways.

In Casey, the court upheld Roe’s holding that a woman has the right to choose to terminate a pregnancy up to the point of fetal viability and that states could restrict abortion after that point, subject to exceptions to protect the life or health of the pregnant woman. But the Casey court concluded that Roe too severely limited state regulation prior to fetal viability and held that states could impose restrictions on abortion throughout pregnancy to protect potential life as well as to protect maternal health – including during the first trimester. Casey also introduced the “undue burden” test, which prevented states from imposing restrictions that had the purpose or effect of placing unnecessary barriers on women seeking to end a pregnancy prior to viability of the fetus.

The Dobbs ruling replaces the “undue burden” test with the much weaker “rational basis” test for judicial review. Going forward, state restrictions on abortion must receive a “strong presumption of validity” and courts must uphold them as long as there is a “rational basis” for the legislature thinking that those laws advance “legitimate state interests.”

What Is the Women’s Health Protection Act?

Recent efforts to pass federal legislation protecting the right to abortion center on the proposed Women’s Health Protection Act, introduced in Congress by U.S. Rep. Judy Chu and sponsored by Sen. Richard Blumenthal in 2021. It was passed in the House, but is blocked in the Senate. The proposed legislation was built around the undue burden principle of the now overturned Casey ruling.

It sought to prevent states from imposing unfair restrictions on abortion providers such as insisting a clinic’s doorway is wide enough for surgical gurneys to pass through, or that abortion practitioners need to have admitting privileges at nearby hospitals. The Women’s Health Protection Act used the language of the Casey ruling in saying that these so-called TRAP (Targeted Regulation of Abortion Providers) laws place an “undue burden” on people seeking an abortion. It also appealed to Casey’s recognition that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”