Abortion rights remain a deeply divisive issue, particularly after the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and left abortion regulation to the states. Vice President Kamala Harris has promised to codify Roe if elected president, but this faces significant challenges, with experts estimating less than a 10% chance of success without major changes like eliminating the Senate filibuster or packing the Supreme Court—actions that would have serious implications for U.S. democracy.
What Does Codifying Roe v. Wade Mean?
To codify Roe v. Wade means passing federal legislation to restore abortion rights nationwide, similar to the protections under the original Roe decision. This would allow abortions to be legal up to the point of fetal viability (approximately 24 weeks), with states permitted to regulate abortions beyond this point. Kamala Harris’s goal is to restore this right to all Americans, overriding state-level bans that have been enacted since Dobbs.
However, while this would reinstate federal protections for abortion, it would not fundamentally expand abortion rights beyond the framework established in 1973. Critics argue that it merely returns to a status quo that already had limitations, particularly for marginalized communities who face difficulties accessing abortion services.
The Hurdles to Codifying Roe
Several significant political barriers make it highly unlikely that Harris’s plan to codify Roe will succeed. With Republicans controlling the House of Representatives and the Senate split, Harris would need bipartisan support to pass such legislation, which is improbable given the polarized nature of the issue. Even if Democrats were to regain full control of Congress, the filibuster remains a formidable obstacle, requiring 60 votes in the Senate for most legislation.
To bypass this, Democrats could attempt to eliminate or reform the filibuster, but this would undermine the system of checks and balances designed to protect minority party interests. Removing the filibuster would set a dangerous precedent, allowing the majority party to pass sweeping legislation without meaningful opposition, eroding democratic norms and intensifying political polarization.
Another proposed strategy is court-packing—adding more justices to the Supreme Court to shift its ideological balance. This would further politicize the judiciary, reducing public trust in the Court as an impartial institution and destabilizing the U.S. democratic framework.
Why This Is Bad for Democracy
Both court-packing and eliminating the filibuster pose significant risks to U.S. democracy. The filibuster, while often frustrating for the majority party, serves as a mechanism to ensure broader consensus for significant legislative changes. Without it, laws could be passed and overturned rapidly, creating policy instability and deepening partisan divides. Similarly, court-packing would undermine the judiciary’s role as a neutral arbiter, transforming it into a political tool that shifts in composition based on whichever party controls the presidency and Congress.
These actions could further degrade the public’s trust in democratic institutions and reduce the checks and balances that prevent any one branch of government from exercising too much power. The long-term consequences of such moves could extend well beyond abortion rights, affecting governance and policy-making on a wide range of issues.
How Likely Is Codifying Roe?
Given the significant political hurdles, codifying Roe within a 4-8 year Harris presidency remains unlikely, with estimates of success below 10%. Legislative gridlock, the filibuster, and potential legal challenges make the path to passing federal abortion protections highly uncertain. Even if a law codifying Roe were to pass, it would likely face immediate legal challenges in federal courts, where a conservative majority could overturn or limit its scope.
Republican Stance on Abortion: Trump’s Position
While Democrats like Harris argue that Republican policies on abortion represent an attack on women, the reality is more nuanced. Most Republicans, including former President Donald Trump, support the idea that abortion policy should be determined by individual states. Trump has also stated that he supports exceptions for cases involving rape, incest, or when the health of the mother is at risk. This position aligns with the framework set out in the Dobbs decision, which did not ban abortion but returned regulatory authority to the states.
Trump has also taken steps to support reproductive issues beyond abortion, including expanding access to in vitro fertilization (IVF) treatments and increasing the child tax credit from $2,000 to $5,000. These policies provide direct support to families and reflect a broader approach to reproductive health that goes beyond the narrow focus on abortion. Harris’s framing of Republican policies as part of a “war on women” oversimplifies the issue and overlooks the more complex dynamics at play.
How Many People Are Actually Affected?
While abortion is an important issue, it does not affect as many people as the current political debate suggests. According to the CDC, there were approximately 930,160 abortions in the U.S. in 2020, representing a rate of 14.4 per 1,000 women aged 15-44. The vast majority of these procedures occur early in pregnancy—92% within the first 13 weeks—and only about 1% are performed after 21 weeks, usually due to fetal abnormalities or risks to the mother’s health.
Given these numbers, it is clear that while abortion access is vital for those who need it, the narrative that the debate affects all American women equally is misleading. The issue is being used as a political tool by both parties to mobilize their bases, but the actual number of women affected by state-level bans or restrictions is relatively small compared to other issues like healthcare, education, or economic inequality.
Conclusion
Kamala Harris’s promise to codify Roe v. Wade faces significant challenges, and the likelihood of success is extremely low without radical changes such as eliminating the filibuster or packing the Supreme Court. Both of these actions would have serious implications for U.S. democracy, undermining the checks and balances that protect minority party rights and public trust in the judiciary.
Republican policies on abortion, particularly Trump’s stance, reflect a more nuanced approach than the “war on women” narrative suggests. While Democrats frame the issue as a fundamental attack on women’s rights, most Republicans, including Trump, support state-level decision-making and exceptions for rape, incest, and maternal health. In reality, the number of people directly affected by abortion laws is smaller than the political rhetoric suggests, with many Americans holding moderate views on the issue.
As the political battle over abortion rights continues, the future remains uncertain, but any federal effort to restore Roe faces significant legal and political hurdles.
