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

A Democratic sweep could yield a new Supreme Court justice and the biggest legislative action since the 1970s.

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.

There would also be the prospect of the biggest legislative action on abortion since the years immediately following Roe v. Wade. In 1976, a bipartisan majority of Congress passed the Hyde Amendment prohibiting the use of federal Medicaid funding to provide abortions to low-income women. The ban has been renewed every year. The last time Democrats made a serious run at it was in 1993, when they succeeded in expanding the list of exceptions to the ban on funding. Since then, federal Medicaid funds have paid for abortions in cases of rape, incest, and threats to the mother’s life—but only in those cases.

The Hyde Amendment doesn’t just protect taxpayers from complicity in abortion. It has been enormously consequential. In the years before it, Medicaid funded between 250,000 and 300,000 abortions a year. A 2009 literature review for the Alan Guttmacher Institute, a research group spun off from Planned Parenthood, estimated that the absence of funding led about a quarter of Medicaid-eligible women to continue their pregnancies. Pro-life researcher Michael J. New has concluded that the amendment saves 60,000 lives a year. If such findings are in the ballpark of the truth, it follows that in the years since Roe v. Wade, no public policy has been more effective than the Hyde Amendment in reducing the number of abortions. No other policy even comes close.

The prohibition on funding is popular. A Marist poll for the Knights of Columbus, a Catholic group, found respondents splitting 60-37 percent for a ban on funding. Even 37 percent of people who consider themselves pro-choice agreed. And this popularity protected the amendment for many years. Biden endorsed the majority view for decades. A 1994 letter from then-Sen. Biden to a Delaware constituent said that “the government should not tell those with strong convictions against abortion, such as you and I, that we must pay for them.” 

Over the course of his long career, however, his party has become more uniformly supportive of abortion. Abortion opponents were at one point a larger proportion of Democratic than Republican voters, but the parties gradually realigned as pro-life Democrats and pro-choice Republicans left their old parties. Politicians who represented these points of view, once thick on the ground, became rarities.

When Bill Clinton famously said that abortion should be “safe, legal, and rare,” he was making a gesture toward his own coalition’s ambivalence, not just that of the general public. As “abortion rights” became a core component of the party’s definition, that ambivalence evaporated. The party’s activists became increasingly convinced that they were ceding too much political ground by conceding that abortion was any more morally problematic than an appendectomy.

In 2008, the Democratic platform dropped the “safe, legal, and rare” formula. In 2016, it made opposition to the Hyde Amendment—previously expressed in code, as support for the right to abortion “regardless of ability to pay”—explicit. Biden eventually got the message. Under pressure from abortion supporters, he reversed himself at the start of his primary campaign in 2019. The 2020 platform has abandoned even the 2008-2016 promises that Democratic policies would reduce the need for abortion. The party is all in.

In August, Speaker of the House Nancy Pelosi announced that the House of Representatives will not include the Hyde Amendment in next year’s spending bills. If Biden wins with a Democratic Senate majority—maybe even if Biden wins while Republicans keep a narrow Senate majority—most of the chamber’s Republicans will have to use the filibuster to block abortion funding. A showdown could result in a partial government shutdown, with political risks for both sides. Unless, that is, Senate Democrats attain a majority and use it to make a filibuster impossible. More and more of them are talking about abolishing it, and even if they leave it nominally in place they may find a way to keep abortion funding from being subject to it.

Biden’s plans for taxpayer funding of abortion go beyond ending the Hyde Amendment. He also proposes to create a new federal health-insurance program, which his campaign calls “the Biden public option.” His campaign website explains that this program “will cover contraception and a woman’s constitutional right to choose.”

If Democrats initiate taxpayer funding for abortions on this scale, they will almost certainly also abolish some other funding restrictions that pro-lifers have succeeded in attaching to spending bills. The Weldon Amendment blocks federal Medicaid funding from going to any state that discriminates against any health-care provider for refusing to participate in abortion. Even if Democrats left it in place, a Biden administration might follow the Obama administration’s example by attempting to read it so narrowly as to nullify it.

The fate of those abortion-related policies that are subject to executive orders would also, of course, depend on the results of the presidential vote. President Trump has cut off funding from groups that perform or advocate for abortion overseas, and domestic family-planning funding from groups that perform or facilitate abortions (most prominently, Planned Parenthood). Biden would surely rescind those orders, and similar ones, in his first week in office.

If Biden had maintained his opposition to taxpayer funding of abortion, or even just echoed the old rhetoric about lamenting and wanting to reduce abortions, he might have won over more of the many pro-lifers who object to Trump on various grounds. Such steps would have allowed him to claim the middle ground on the issue rhetorically, even as he continued to support legal abortion all through pregnancy

But Biden’s party foreclosed that option. That’s why pro-life voters will reject him. And it’s why they’ll be hoping that if Biden wins, Republicans at least retain the Senate.

Ramesh Ponnuru is a visiting fellow at AEI and a senior editor for National Review. He is the author of The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life.

Photograph by Olivier Douliery/AFP/Getty Images.