The Biden Agenda: Let’s Talk About the Courts, Congress, and Abortion

For activists, the upcoming election is always the most important one in our lifetimes, or maybe ever. On the issue of abortion, however, the stakes in this election really are high. The variance of potential policy outcomes is wider than usual for three reasons: the closeness of the division on the Supreme Court over it, the increasing militance of the Democratic party, and the fact that control of both the presidency and the Senate could flip. A re-elected Donald Trump with a Republican Senate would have a shot at creating a Supreme Court majority willing to allow states to restrict, or even prohibit, abortion. If Joe Biden wins alongside a Democratic Senate, that prospect could be put off for a long time—and taxpayer funding of abortion could greatly expand.

The Supreme Court is currently divided 4-1-4. Four conservative justices have voted to allow legislatures to protect unborn children in every case they have had a chance to do so; four liberals have never voted to allow it; and Chief Justice John Roberts has usually but not always voted to allow it. In a second term, Trump might be able to augment the conservative bloc that would cede power back to elected officials. That “might” is there for a reason. Republicans might not have the Senate votes to confirm a Trump nominee, and the nominee might end up voting to re-affirm abortion as a constitutional right once on the bench.

And even if the Supreme Court were to get out of the business of regulating abortion policy altogether, many states would continue to allow abortion with few or no restrictions. It would nonetheless be a huge triumph for pro-lifers if the court were to draw back. Some states would provide legal protections for unborn children, and the court would no longer be placing the country’s fundamental law at odds with basic civil rights.

That’s the best-case scenario for pro-lifers. A Democratic sweep could on the other hand result in the replacement of one or more of the conservatives by a liberal. No justice appointed to the Supreme Court by a Democrat since 1962 has voted to allow states to prohibit abortions. With more such justices on the court, the small amount of leeway that legislatures now have could be further restricted: Partial-birth abortion could again become a de facto constitutional right, for example. A large enough Democratic victory might even enable progressives to expand the Supreme Court to make room for more supporters of abortion. Kamala Harris, Biden’s running mate, has said she is open to the idea.