Almost immediately after Justice Samuel Alito’s draft became known, Sen. Bernie Sanders (I-Vt.) and the left-wing members of the so-called “squad” called for Congress to pass legislation that would restore the abortion rights guaranteed by Roe v. Wade. The next day, Senate Majority Leader Chuck Schumer (D-N.Y.) angrily denounced the Alito draft on the Senate floor and said that if the final opinion comes to the same result, he will work to have the Senate restore women’s rights under Roe.
Even if there were the votes in the House to pass such legislation, or in the Senate to override or eliminate a filibuster of this legislation, it is highly unlikely that the Democrats in Congress will ever be able to agree on a piece of legislation that actually restores “a woman’s right to choose” under Roe.
Today, most of the polling on this issue shows that a majority of the American people — anywhere from 54 to 76 percent — believe that Roe should be retained. However, when the polls get down to actual terms, it turns out that when the American people support Roe they have something very specific in mind. In general, what they favor are limitations on abortion so that it is only available before a fetus is “viable” — that is, could live outside the womb.
In other words, the American people have, through their own or others’ experience — or through widely circulated photos of infants in utero — or just common sense, have concluded that a fetus should not be aborted (that is, killed) when it has actually become a human being by winning the struggle for an independent life.
Although some commentators have thought that the Democrats’ inability to break the filibuster is the reason they will not be able to restore Roe legislatively, the problem is more fundamental — they will not be able to form a majority in Congress even if there were no filibuster.
Here’s the problem: Roe protects abortions before viability, which can range from 24 to 28 weeks, but in many blue states such as California, Colorado and the District of Columbia, there are no restrictions on abortion at all. Under the laws of those states, abortions can be performed at any time, including — though in practice very rare — right up until just before actual birth of a child.
In effect, Roe is only effective in states which otherwise outlaw abortion. In those states, Roe applies — limited to the current the period before viability and after viability depending on a physician’s judgment if the life or health of the mother is at risk.
Accordingly, what would Congress have to do in order to enact legislation that restores women’s rights under Roe?
First, it could adopt legislation that meets the standards of Colorado or California. In that case, the law would say abortions before viability could not be prohibited, but abortions after that period would be subject to state law. In those states, in effect, abortions could be performed at any time.
Could a law pass Congress that meets this test? That would mean that members of the House and Senate would be required to vote for a national standard that allowed abortion up to and possibly beyond the date of the actual birth. Although this would in effect reinstate Roe as it is actually in effect today, it would certainly go far beyond what most Americans think should be permissible — and would be a dangerous vote for most of Congress.
On the other hand, could Congress enact a law that imposes a fetus viability limit of, say, 24 to 28 weeks, that would be enforced nationwide? That would accord with how most Americans approve of abortions, but it would be more restrictive in many of the blue states than what is permissible now.
One can easily imagine a stalemate in Congress — even a Congress with a Democratic majority — over the question whether abortions should be legal even if they take place after the fetus is “viable,” or should be legal only if they take place within some period prior to viability.
So, the brave talk of Sens. Schumer and Sanders, and the “squad” in the House, that Congress will simply take up and pass legislation that implements the Roe standard is close to a pipe dream.
Ironically, if Roe v. Wade is actually overturned by the Supreme Court, the only structure that would work for both sides is to return the question to the states. That would allow some states to permit abortion at any time, and others to impose a Roe-like limit, but there is little likelihood that the U.S. Congress could enact either of these alternatives.
NOTE: This post has been updated from the original to correct a statement about the legal timing of abortion in places such as California, Colorado and the District of Columbia.
Peter J. Wallison is a senior fellow emeritus at the American Enterprise Institute. He was White House Counsel in the Reagan administration.