The limits of what Kamala Harris can do for abortion rights

Efforts to codify Roe date back to the late 1980s, when Democrats believed the Supreme Court would inevitably overturn abortion rights. Although some activists wanted a federal constitutional amendment to protect reproductive rights, Democrats in Congress found that unattainable and instead pushed for an abortion rights bill called the Freedom of Choice Act that would have blocked most state restrictions on abortion.

But even when Democrats had control of Congress and the White House, the idea of ​​codifying Roe, which fundamentally united the party, sometimes masked disagreements over what “Roe” meant, especially as the Supreme Court overturned the decision over the course of the year reinterpreted over the years. Some moderates thought of the Supreme Court’s statement in Planned Parenthood v. Casey in 1992, which allowed states to impose some restrictions on abortion, such as parental involvement laws or bans on Medicaid funding of the procedure. Other Democrats said any version of Roe — including the least restrictive interpretation of the original 1973 decision — would not go far enough to stop states from criminalizing post-viability abortions because women can suffer fatal health crises later in pregnancy .

And at other times, such as during Barack Obama’s first term, codifying reproductive rights appeared to be a much lower priority for Democrats than health care reform and other goals, including reducing teen pregnancy.

The latest failed attempt to save abortion rights came as the Dobbs decision loomed. The Women’s Health Protection Act would have created national protections for abortion patients and providers and banned what the law deemed medically unnecessary restrictions. The importance of the action was not lost on Democrats, especially since Donald Trump had already appointed three new justices to the Supreme Court and the bill passed the House of Representatives in September 2021. But the Senate rejected the bill twice, in February and May 2022. Moderate Republican senators who supported some form of abortion rights, including Susan Collins of Maine and Lisa Murkowski of Alaska, argued that the bill went too far, while Democrats The two senators’ alternative rejected a bill that would have codified Roe but retained some restrictions.

Theoretically, it’s possible that Democrats have found a way around these divisions. The party is certainly more united on reproductive rights issues than in the past. And the urgency to take action becomes even clearer with nearly half of the country imposing a comprehensive ban.

But the reality is that it is unlikely that Democrats will gain the majority in Congress needed to pass such legislation in 2024.

But a Harris presidency could still make a big difference. Depending on the makeup of Congress, Harris could push for a less ambitious reform, such as repealing the Comstock Act, an 1873 obscenity law that abortion opponents call a de facto abortion ban waiting to be fully enforced. Conservatives interpret it to mean that the Comstock Law prohibits the sending of any abortion-related information or paraphernalia without exception. Repeal of this law could appeal to moderate Republicans like Collins.

Then there are steps Harris could take without Congress. During the Biden administration, some abortion rights advocates were frustrated by the president’s unwillingness to take the offense to task in court. Harris may be less risk-averse. For example, she might argue that federal regulations regulating access to the abortion drug mifepristone take precedence over state criminal laws restricting the drug. She could also continue Biden’s strategy of ensuring emergency access to abortions under the federal Emergency Medical Treatment and Labor Act (EMTALA) and use the Free Access to Clinic Entrances Act to prosecute those who block access to clinics or threatening those who enter clinics.

Again, Harris would likely face some limitations. Biden has been cautious about some of these moves not only because of his apparent discomfort with the issue of abortion, but also because of the risk that such a move would backfire on the conservative Supreme Court. The government could lose one of these cases, allowing the conservative supermajority to govern in a way that would set back abortion access even further. For example, the fight over emergency access to abortion using EMTALA could give the court an opportunity to declare that the law’s use of the term “unborn child” (which scholars say only applies when patients are already in labor) is the intent of the law Congress signals it will protect fetal rights and restrict access to abortion — even in blue states.

That brings us to one of the most significant steps Harris could take: changing the way the Supreme Court operates. The next president could have the ability to appoint multiple justices, and the court’s two most conservative members, Samuel Alito and Clarence Thomas, are also the oldest. But even if there are no Supreme Court vacancies in a potential Harris term, her administration could undermine the impact of major conservative victories on the Supreme Court.

Consider some of the issues the court addressed last fall. Conservatives are still pushing for the court to decide whether the Food and Drug Administration lacked the authority to approve mifepristone in 2000. If this argument someday succeeds, it would be up to the FDA in a Harris administration to enforce such a decision (the FDA can enforce it). civil and criminal penalties for the sale of misbranded products or drugs that have not been properly approved by the authority). But the FDA can only prioritize so many investigations, and a Harris FDA probably wouldn’t target mifepristone. It would also likely take steps to re-approve the drug. And if the Supreme Court were to rule that the Comstock Law was a de facto ban on the mailing of abortion-related material, it would be very unlikely that a Justice Department in Harris would devote resources to prosecuting people who received or mailed abortion pills.

Voters concerned about abortion rights will be betting high if they vote for Trump, who has refused to veto a national abortion ban or give a clear answer to what he said about enforcing the law Comstock Act thinks the way conservatives want it to. That’s why a Trump presidency could lead to national abortion restrictions that override state-level protections set by voters.

At least in the short term, a Harris administration is unlikely to create federal protections for abortion rights. But it can ensure that voters who supported abortion rights in their own states can retain those rights.

Globe Ideas writer Mary Ziegler is a law professor at the University of California, Davis and author of “Roe: The History of a National Obsession.”