Biden Wants the Senate To Use Raw Legislative Power To Protect Abortion Rights

The announcement by President Biden today that he will support an exception to the Senate filibuster to codify the right to abortion into law represents an attempt to use what might be called raw legislative power to secure what couldn’t be secured by “raw judicial power.”The phrase “raw judicial power” was used by one of the dissenters, Justice Byron “Whizzer” White, when Roe v. Wade was decided in 1973. The use of raw judicial power by the Supreme Court was able to sweep aside state laws prohibiting abortion, but it failed to resolve the controversy.Recognizing that failure, the Supreme Court returned the abortion issue to the legislatures. So now Mr. Biden wants to short-circuit the normal procedures of the Senate in the hopes of forcing through a law that can’t currently pass.“I believe we have to codify Roe v. Wade in the law, and the way to do that is to make sure that Congress votes to do that,” Mr. Biden said Thursday at Madrid.This is a reversal from the position he held at the beginning of the presidency, when he said ending the filibuster would “throw the entire Congress into chaos.” However, the president has also supported a filibuster exception to pass changes to election law.Senators Manchin and Sinema have previously demurred on ending the filibuster to protect abortion rights. “The filibuster is the only protection we have in democracy,” Mr. Manchin said when asked about the prospect in May. At that time, Mr. Manchin also voted with Republicans against a bill that would have enshrined abortion rights into law. This was the Women’s Health Protection Act, passed last fall by Democrats in the House, which would have prevented states from imposing “undue burdens” on women seeking abortions — borrowing language from the Supreme Court’s decision in Planned Parenthood v. Casey.“Governments may not limit a provider’s ability to prescribe certain drugs, offer abortion services via telemedicine, or immediately provide abortion services when the provider determines a delay risks the patient’s health,” the bill says.Ms. Sinema voted for that bill, but has also defended keeping the filibuster. “Protections in the Senate safeguarding against the erosion of women’s access to health care have been used half-a-dozen times in the past 10 years, and are more important now than ever,” Ms. Sinema said.Senators Collins and Murkowski, both Republicans, have also expressed openness to a bipartisan law to codify abortion, but they expressed opposition to using a filibuster carveout to pass it. Ms. Collins has said that subverting the filibuster would “irreparably harm the Senate.”In May, the two senators laid out a more limited bill, intended to pass with the filibuster intact. Their bill would also prevent states from imposing “undue burdens” on abortion but would continue to allow states to restrict the procedure “after fetal viability.” It also says that it would not override state laws allowing providers to refuse abortion for moral or religious reasons.“I have long supported a woman’s right to choose,” Ms. Murkowski said, “but my position is not without limits, and this partisan Women’s Health Protection Act simply goes too far. It would broadly supersede state laws and infringe on Americans’ religious freedoms.”

Biden Wants the Senate To Use Raw Legislative Power To Protect Abortion Rights

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