Today, January 22nd, is the anniversary of Roe v. Wade, the Supreme Court decision that ruled unduly restrictive state regulation of abortion was unconstitutional, in effect legalizing abortion nationally. That a conservative Supreme Court would pass this, under the Nixon administration, was directly due to the large women’s movement of the late 1960s and early 1970s, which put reproductive rights front and center. Abortion rights have been under attack and whittled back since.
When Roe v. Wade was decided in 1973, any supposed distinction between Republican and Democratic judges made no difference. A majority of justices on the Court had been nominated by Republican presidents. The vote on Roe v. Wade was 7-2. Nixon had nominated four justices and three of them concurred on Roe v. Wade. Byron White, one of the two who argued against, had been nominated by the liberal Democratic president Kennedy.
Joseph Biden was opposed to Roe v.s Wade when he started his career as a Delaware Democratic Senator and social conservative. He said in 1974, “I don’t like the Supreme Court decision on abortion. I think it went too far. I don’t think that a woman has the sole right to say what should happen to her body.” It was only overwhelming public opinion that led Biden to acquiesce to the minimum of not supporting the overturning of that decision.
On the ground the women’s movement of the early 70s was linked to a broader radicalization from the anti-war movement to Stonewall–despite clashes between more conservative single-issue leaders. Supreme Court justices did not just bow to public opinion, but feared that siding with laws against abortion in this climate would undermine the court’s legitimacy. The same kind of movement is needed today to defend Roe v.s Wade, overturn the restrictions put on abortion access, and push forward towards socialized healthcare with equal access for poor and minorities, women, trans people, and all underserved and oppressed communities.
Even under Roe vs Wade there have been a plethora of appalling limitations on abortion rights in many states, closing clinics and making access difficult. In 2020 there were 24 provisions of State legislation enacted that restricted abortion access, and 16 provisions enacted to defend or expand access. There have been 480 state restrictions passed between 2011 and 2020, and states are primed to go further. Planned Parenthood found 25 million people (women, girls, and trans folks of reproductive age) would completely lose access to abortion if their state were free to decide local abortion laws. This amounts to about 1/3 of those who may need it.
Nationally, the Supreme Court is already pushing its right wing agenda with the latest justice, Amy Barrett Cony sworn in at the eleventh hour under Trump. The first ruling on abortion by this full Court is already making itself felt. The Court reinstated the needlessly difficult FDA requirement that those who need it have to pick up the abortion pill mifepristone in person from a hospital or medical office, even during the Covid-19 pandemic. Mifepristone is the only drug approved by the FDA it requires to be picked up in person to be taken at home. This requirement could easily be reversed.
Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, one of the original plaintiffs in an ACLU suit on the issue, pointed out that “Black, Brown and Indigenous folks should not have to endure yet another form of state violence while we are fighting for our lives in this pandemic. It’s up to the Biden-Harris administration to not only undo this damage they are inheriting, but also take bold affirmative action to advance reproductive justice.”
For most of Roe vs Wade’s existence there have been unfair national curbs on abortion. In 1976 the Hyde Amendment banned the use of federal funding for abortion under Medicaid and numerous other federal programs. This cut access to poor women, disproportionately minorities. This was not just the Republicans’ doing. When Democrats held a majority in the House, the Hyde Amendment passed year after year with significant support from Democratic congress people. When the newly elected Democratic president Jimmy Carter was asked if Hyde was unfair to poor women, he responded with a shrug, “life is unfair.” President Carter did nothing to stop the Hyde Amendment as it faced legal challenges all the way to the Supreme Court. In 1988 the annually renewed amendment to the appropriation bill became a stand-alone law.
Even the Affordable Care Act (“Obamacare”) includes language applying similar limitations on abortion coverage to plans for those who receive income-based health care subsidies. A recent review found that “in many states hundreds of thousands of women seeking abortion services annually are left without coverage options.” This carving out of abortion from healthcare coverage is inhuman, and has continuing consequences. Those forced into pregnancy and birth through lack of healthcare access are more likely to fall into long-term unemployment and poverty. In the U.S. 30% of Black women are enrolled in Medicaid, and black women are between three and five times more likely to die during pregnancy than white women.
Throughout his career, Joseph Biden opposed most federal funding for abortion services. In 1977 he even rejected exceptions for victims of rape and incest that were widely supported by Democrats. While publicly supporting the highly popular Roe v Wade, Biden describes himself as a devoted Roman Catholic who personally opposes abortion, but would not impose his beliefs on others. However, his support of funding restrictions tells another story. In 1981 he again voted to remove the small exceptions to the Hyde amendment, and in 1983 voted to prohibit federal workers from using health insurance on abortion services.
Even without the large, active women’s movement and demonstrations of the past, pressure and public opinion has shifted Biden’s public stance, along with other politicians, but not enough. When pressed in the recent Democratic primaries, Biden privately indicated on camera that he would work to get rid of the Hyde amendment. Yet, he was the only one of the Democratic candidates who did not have that on his platform, and his campaign confirmed to NBC News that Biden still supports that unfair and pernicious amendment. Sure enough, on Biden’s first day his press secretary Jen Psaki refused to say whether Biden would act to repeal the Hyde Amendment, and saw fit to note that the president was a “devout Catholic, and somebody who attends church regularly.”
The pressure needs to continue and grow, and can’t wait for Biden or any future appointments of Supreme Court justices to save the day. The immense mobilization of the Women’s March that met Trump’s first day in office is still needed. Unfortunately, the huge influence of the #MeToo movement, and the opposition to Trump’s molesting of women and allegations of rape, were much quieter around Tara Reade’s accusations of sexual assault against Biden.
Joseph Biden pledged his support for Roe v. Wade, but if he really supported reproductive rights, he would use its anniversary (on his third day in office, with a Democratic majority Congress), to demonstrate that support by calling for an immediate reversal of the Hyde Amendment. It is up to us to win the battle for abortion rights—including mifepristone by mail—for good, and fight for much more.