President Joe Biden, 79, showed he was jet-lagged or sleep-deprived speaking at a Madrid NATO summit, saying he’s willing to get rid of the filibuster in order to pass national abortion rights legislation in the wake of the June 24 Supreme Court decision to end Roe v. Wade. “I believe we have to codify Roe v. Wade into law,” Biden said in Madrid. “And the way to do that is to make sure Congress votes to do that. And if the filibuster gets in the way—it’s like voting rights—it should be we provided and exception for this. We require an exception for the filibuster for this action,” Biden said, not certain that he has the 50-plus-one vote needed to invoke the so-called nuclear option. Biden lived in the Senate for most of his career until spending time as former President Joe Biden’s Vice president. Ending the filibuster is a time-honored tradition that to pass legislation the Senate needs at least 60 votes.
Biden’s Vice President, 56-year-old Kamala Harris, refused to answer a question from CNN’s Dana Bash about ending the filibuster to force national abortion rights legislation through Congress. Kamala apparently didn’t know that Joe had already backed tossing out the filibuster for national abortion rights legislation. Whether Democrats have the 50-votes-plus-one or not, the Supreme Court just ruled overturning Roe v. Wade, reversing that would undermine confidence in the tripartite system of government, where each branch has equal constitutional authority. Ending the filibuster to get national abortion legislation passed would undermine Article 3, pertaining to the national judiciary. Whether Biden knows it or not, it’s doubtful Sen. Joe Manchin (D-W.V.) or Kyrsten Sinema (D-Ariz.) would agree to ending the filibuster to pass national abortion legislation.
Even if Biden and Democrats invoke the nuclear option, any national legislation that games the system would be bound to get challenged in the courts. Six justices, including Chief Justice John Roberts, said the U.S. Constitution does not guarantee abortion to any woman in the land. So, if Democrats, together with some Republicans, pass national abortion legislation, it could be tied up in federal court. Any legislation passed by Congress, with the nuclear option or not, must pass the Constitutional test. Biden seems confident that the nuclear option would be appropriate to preserve abortion rights around the country. Ruling in favor of Dobbs v. Jackson June 24, the Supreme Court held that the Constitution did not confer the right to abortion. But in ending 1973 Roe v. Wade and 1992 Casey v. Planned Parenthood, the Supreme Court injected their own religiosity into their decision.
Saying the Constitution, in Dobbs, does not confer a right to abortion, Roe v. Wade conferred the right to privacy under the 14th Amendment Due Process clause to decide on medical decision-making. Well if you follow the Court’s logic, it doesn’t add up. Either the 14th Amendment’s right to Due Process matters or it doesn’t. There’s nothing about Dobbs v. Jackson that undermines the 14th Amendment, other than saying the Constitution does not confer the right to abortion. Back in 1791, the date Congress approved 10 Amendments to the 1782 U.S. Constitution, no one knew about abortion. What the framers did know was the Establishment Clause of the First Amendment prohibited religion from interfering with the U.S. government. Thomas Jefferson, the primary author of the 1776 Declaration of Independence and 1787 Constitution, required separation of church and state.
When it comes to abortion, Roe v. Wade was always about a women’s right tot choose abortion, not passing judgment on abortion as a medical procedure. Ending Roe v. Wade, the Supreme Court ignored the substantive rights to Due Process conferred under Roe v. Wade. Dobbs v. Jackson only said that abortion was not specifically conferred by the Constitution. Dobbs v. Jackson speaks about whether the Constitution confers the right to abortion. But it doesn’t say the right to choice under Roe v. Wade, conferred by the 14th Amendment, doesn’t stop a patient from seeking an approved medical procedure with a qualified practitioner. “President Biden told my colleague Anderson Cooper he would be OK with eliminating the filibuster to pass voting rights “maybe more,” said CNN’s Dana Bash. “Would you support eliminating the filibuster in order to pass federal legislation for abortion rights?”
Harris told Bash that she didn’t think the votes were there to pass national abortion legislation but, if it were passed, it could be tied up in the courts. Supreme Court’s June 24 ruling in Dobbs v. Jackson does not overturn Roe v. Wade’s right to medical privacy. Unless “dilatation and curettage” is eliminated by the American Medical Assn. or state medial boards, women, under Roe v. Wade, still have Due Process rights to privacy and medical decision-making under the Constitution. Dobbs v. Jackson only said that the Constitution did not confer the right to abortion. How the High Court concluded from that that women do not have the right to medical privacy and decision-making is anyone’s guess. If 70-year-old Atty. Gen. Merrick Garland reviews the ruling, he could challenge the Supreme Court ruling under Dobbs that it doesn’t reverse due process rights under Roe.
