Democratic presidential nominee Joe Biden says he wants to make the Roe v. Wade ruling establishing a legal right to abortion the “law of the land.”
During a townhall Monday night on NBC, Biden was asked what he would do if Amy Coney Barrett is confirmed to succeed Ruth Bader Ginsburg and the Supreme Court overturns Roe.
“No. 1, we don’t know exactly what she will do, although the expectation is that she may very well move to overrule, overview, overrule, Roe, and, but the only thing, the only response to that would be to pass legislation making Roe the law of the land,” Biden said. “That’s what I would do.”
Roe v. Wade must remain the law of the land. pic.twitter.com/1Gq6Ncc2IK
— Joe Biden (@JoeBiden) October 6, 2020
Law professor Jonathan Turley said Biden may not have the power to do that.
“The comment was notable in a number of respects,” he said. “First, states could challenge such a move. As with Biden’s declaration that he will require mandatory mask wearing nationwide, there are serious questions over his authority to compel such action due to federalism limitations. If the Supreme Court struck down Roe, it would be presumably based on the position that it is not a constitutional right. Biden would then order states to guarantee something that is not constitutionally required. That would put the Biden administration on a collision course with the Tenth Amendment.”
The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Turley explained that making Roe “the law” would require a federal law guaranteeing the right to an abortion.
“Yet, after the Supreme Court overturned Roe, states could claim that this is no longer a right ‘delegated to the United States by the Constitution, nor prohibited by it to the States,'” he wrote.
One alternative would be to tie federal funding for medical care and insurance to access to abortion services, he said. But that, too, would raise “federalism issues and the question of ‘commandeering’ states.”
The U.S. Supreme Court previously has said the federal government cannot “commandeer” states, and the federal government cannot order states or cities to enforce federal law.
He said if Biden’s plan would succeed, it “would support the view of many who oppose Roe v. Wade.”
“It is possible to be in favor of the right to choose and still disfavor Roe,” said Turley.
“Some believe that this is a matter for the states and that voters can protect this right as a matter of state law. Biden’s reference to a legislative fix is clearly federal not state. However, it highlights that fact that, even if Roe were overturned, it would not mean the elimination of the right to choose. Most states would likely continue to protect the right as a matter of statutory law. Clearly, however, some would not.”
Biden, a self-professed practicing Catholic, already has been condemned for his abortion advocacy.
The Catholic News Agency reported Cardinal Raymond Burke, formerly the prefect of the Catholic church’s highest court, said Biden “is not a Catholic in good standing and he should not approach to receive Holy Communion.”
His comments came in an interview with Thomas McKenna of Catholic Action for Faith and Family.
“This is not a political statement, I don’t intend to get involved in recommending any candidate for office, but simply to state that a Catholic may not support abortion in any shape or form because it is one of the most grievous sins against human life, and has always been considered to be intrinsically evil and therefore to in any way support the act is a mortal sin,” Burke said.
Asked about Biden, he said the former vice president “has not only been actively supporting procured abortion in our country but has announced publicly in his campaign that he intends to make the practice of procured abortion available to everyone in the widest possible form and to repeal the restrictions on this practice which have been put in place.”
Receiving Holy Communion would be “a danger to the salvation of his own soul,” Burke said.
