October 6, 2020

Via Newsweek:

Former Vice President Joe Biden has said he'll move to protect abortion rights if the Supreme Court strikes down Roe v. Wade, the historic decision that protected a woman's right to have an abortion.

The Democratic presidential nominee told an NBC News town hall in Miami on Monday that if the historic ruling on abortion is overturned, his "only response to that is pass legislation making Roe the law of the land. That's what I would do."

That's the Democratic position, but Eli Mystal explains why it won't matter:

Again, it’s not that the codification of Roe is a poorly thought out plan, it just fails to recognize how deeply the Court has already pre-judged the issue. Senator Kamala Harris, whose thoughts about this are clearly the most developed among the Democratic candidates, explained that her codification of Roe would include a “pre-clearance” scheme that required the states to get permission from the federal government before changing its laws on abortions or access to them.

It’s a great plan. Pre-clearance worked fantastically when it was a part of the Voting Rights Act.

I say “was” because John Roberts totally nuked pre-clearance in 2013 in Shelby County v. Holder. The whole point of that disastrous decision was so Roberts could declare victory over racism and rule that pre-clearance was unconstitutional.

During his run, Biden has also reversed his long-standing opposition to federal abortion funding via the Hyde Amendment. If Mystal is right, can reversing the law keep SCOTUS from claiming religious grounds prevent the use of tax dollars for abortion?

No, we're going to have to reform SCOTUS and add additional seats. It will be quite a fight, but it will have to be done. It won't just be abortion that this court obstructs.

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