Last month’s debate between current President Joe Biden and and former President Donald Trump promised to make abortion a key issue, but many people were left disappointed by how little focus was given to reproductive rights. The two speakers spent little time on the issue while Trump even gave voters misinformation about late-term abortions. Nonetheless, Biden once again concluded his remarks that if reelected, he would continue to work to restore federal abortion rights.
It’s not the first time Biden has said he would “restore” Roe v. Wade, the landmark Supreme Court case that enshrined the right to abortion. It was overturned in June 2022 and ever since has been a common claim on the campaign trail to fix it, one that Biden also touted during the 2024 State of the Union address and more recently released a campaign ad that targets Trump on abortion.
But many are quick to criticize Biden over these future promises, given that he’s president now — so why can he do anything about this today? Salon asked legal experts if Biden’s promise to restore Roe is misleading, and what his options would be in a potential next presidency to take such an action.
“I think that critique is very valid, that he is president right now and why is he not doing anything?” Seema Mohapatra, a law professor at the SMU Dedman School of Law, told Salon, adding that this is the “biggest issue” in this year’s election in terms of
mobilizing voters. “Majority of the American people are in support of some sort of abortion rights, and he’s lost a lot of chances to talk about any specifics, and he's not really giving specifics about what he would do differently today than what it would be in like six months.”
Mohapatra said from her legal perspective, the best path forward to restore Roe would be to expand the Supreme Court.
Roe v. Wade ruled that the U.S. Constitution protected a person’s right to have an abortion if they choose; the Supreme Court ruled 7-2 in Roe’s favor in January 1973, but history had other plans. On June 24, 2022, the SCOTUS ruling in Dobbs v. Jackson Women’s Health Organization — a case that challenged a Mississippi ban on abortion at 15 weeks of pregnancy — overturned Roe v. Wade, which effectively ended the federal constitutional right to have an abortion in the United States. Specifically, the opinion stated there's no federal constitutional right to an abortion.
“Without changing the composition of the Court, I don't see how that itself is going to change,” Mohapatra said. “There's nothing in the Dobbs opinion that bans a national abortion ban, but there's not also nothing that necessarily bans some level of protection.”
If the Supreme Court is going to overturn any kind of national abortion legislation, there would have to be some justification for that, Mohapatra added, especially if the court making the opinion already holds the opinion that the Constitution doesn’t protect the right to choose an abortion.
“But Biden can't do that alone,” she said. Indeed, unless Democrats hold a majority of the Senate, he won’t be able to pass any kind of legislation to restore it or to pass a bill to expand the U.S. Supreme Court.
David S. Cohen, a professor of law at Drexel Kline's School of Law, told Salon that when he hears Biden say he is going to “restore Roe” if he’s elected to serve as president for a second term, he thinks he’s hoping to get a Congress that supports him. Hence, why the focus is on what he can do in another term and not as the current president.
“Right now, the house is Republican controlled and the Senate is bare majority of Democrats, so I think he's hoping that in November, the house flips back to being controlled by Democrats and the Senate gets a few more Democrats who are bold enough to get rid of the filibuster,” Cohen said, adding that it’s not as “clear cut” as Democrats winning a majority of both houses. “There are certainly many Democrats who have expressed a lot of concern about getting rid of the filibuster, so even if there's majorities in both houses, there's a question of whether there's a majority of Democrats who support getting rid of the filibuster, either as a general matter or specific to abortion.”
Cohen said Biden’s claim to “restore Roe” is a “signal of what he wants to do.” It’s not literal as the reality is more complicated. However, he doesn’t necessarily think it’s “misleading.”
“It’s a statement of policy: it’s telling you what the president thinks on the issue,” he said. “Would it be better if he spells it out, or if it were fully understood by everyone that in order for him to do this, you would need to elect pro-choice Democrats up and down the ballot? Yes, it would be better, but this is not any different than any president saying what they want as a matter of policy.”
Azaleea Carlea, legal director at Legal Momentum told Salon in a phone interview, as someone who works in the reproductive rights space, she was very disappointed after the presidential debate last month.
“We certainly were not happy after the debate when former President Trump was talking about post-term, after-birth abortions. It was just so surreal to even think that he was saying this on national television with no fact-checking,” Carlea said. “But I was disappointed in how President Biden countered. He really had an opportunity to underscore how important this is to the American people.”
Carlea added that Roe v. Wade was the “bare minimum.” That she’d like to see the next administration be one that “goes further,” instead of a focus on restoring Roe, offering an agenda and plan that would “really protect people's access and to protect their health.”
“Under the Roe framework, which centered around this nebulous concept of viability, you still had states that were criminalizing and surveilling post-viability,” Carlea said. “We need to get rid of all of that and ensure that every American can make medical decisions for themselves with the advice of their medical provider and their families to do what's right for them.”
