By Vowing to Codify Roe, Kamala Harris Ensures Continued Government Meddling in Abortion Care

After months of touring the country to push back against draconian restrictions on abortion care, Vice President Kamala Harris has made reproductive rights central to her nascent presidential campaign. She has pledged to turn back the clock on Dobbs, the Supreme Court ruling that eliminated constitutional protections for abortion.

“We need to put into law the protections of Roe v. Wade,” Harris told Politico. “And that is about going back to where we were before the Dobbs decision.”

That vision is not exactly visionary. A growing number of abortion advocates say that codifying Roe only guarantees government interference in reproductive health care — the very thing Harris has said she opposes.

Calling to “restore Roe is a call to continue banning abortion and to continue criminalizing pregnant people,” said Dr. Jenni Villavicencio, an OB-GYN and complex family planning specialist who provides all-trimester abortion care. “It is an outdated call that in reality threatens, harms, and punishes abortion seekers and their providers.”

Ahead of the Democratic National Convention in Chicago next week, dozens of advocates are calling for an expansive vision of abortion rights that they hope Harris and other politicians will embrace to create equitable reproductive health policy. They are pointing to a memo titled “Abortion Justice, Now” of which Villavicencio is a primary co-author, that lays out a vision of reproductive freedom that expands far beyond the reaches of Roe.

The memo calls on elected officials to instead enact protections for patients and doctors throughout pregnancy that center the needs of the most vulnerable, and it points to federal legislation filed last year as a first step in that direction. “We can and should invest in bold policies, not restoring Roe,” the 17-page memo reads. “Given that past is prologue, a return to a Roe-era status quo squanders a once in a generation opportunity to reimagine reproductive rights, health, and justice.”

Abortion Rights With an Asterisk

The right to abortion guaranteed by Roe (carried through and refined under later Supreme Court decisions) was always considered a floor and not a ceiling. In other words, Roe provided a base level of reproductive freedom but did not constrain states from going further to protect reproductive rights.

Functionally speaking, however, Roe provided anti-abortion activists and politicians the framework to begin restricting access even as the opinion’s ink was drying. Roe and its progeny ultimately enshrined limits on abortion rights, allowing states to restrict abortion after a certain point in pregnancy, when the government’s so-called interests in protecting fetal life give it the green light to impose limits on care.

The new abortion policy memo tackles these limitations head on. In addition to Villavicencio, the memo’s authors include Dr. Colleen McNicholas, an OB-GYN who provides all-trimester abortion; Pamela Merritt, the executive director of Medical Students for Choice; and Garin Marschall and Erika Christensen, directors of Patient Forward, which advocates for all-trimester abortion care. (Villavicencio and McNicholas recently co-founded the reproductive justice policy group Raven Lab for Reproductive Liberation, for which Merritt serves as a senior adviser.)

In the memo, they note that “states were not required to ban abortion after viability,” but Roe’s framework allowed them to do so. As a pregnancy advanced under Roe, it was subject to increased surveillance while abortion was subject to increased restriction. The Roe framework and its generous caveats also encouraged a slew of other restrictions on access, such as waiting periods, that were ostensibly aimed at shoring up patient health and safety, but were mostly based on junk science. Thousands of such proposals have been filed in legislatures throughout the country, and since the early 2010s, well over 1,000 have made it onto the books.

By the time the Supreme Court toppled Roe in its 2022 Dobbs decision, 43 states had banned abortion after some point in pregnancy. Since then, 14 states have banned abortion entirely, while 27 others imposed a gestational limit, many of them well before viability, which is generally considered to begin around 24 weeks. Limited exceptions, many of which are purposely vague, have seen pregnant people scrambling for care, increasingly across state lines.

The patchwork abortion rights system created under Roe, where socioeconomic status and ZIP code often determined whether a person was able to exercise their constitutional right to abortion, has also worsened exponentially over the last two years; in each case the most vulnerable and marginalized communities are largely left out of the fold.

But the Dobbs decision has also sparked sustained activism. Kansans were the first to speak at the ballot box when, less than two months after the Dobbs decision, voters fought back an effort to overturn the state’s constitutional protection for abortion. Since then, every state that has taken up abortion has either voted to protect access or to fend off anti-abortion measures. So far, abortion measures in eight states have been certified for the ballot in November, with similar efforts underway in another three states.

In most of those states, voters will be asked to codify measures designed in Roe’s image — in other words, abortion rights with an asterisk.

A New Framework

Villavicencio belongs to an oft-vilified group of physicians that provide abortion care later in pregnancy, a fluid concept that can begin around 21 weeks. She lamented during a recent press conference that she has “watched advocates, both elected and unelected, specifically use us and our patients as bargaining chips in their quests for political wins.”

While abortion later in pregnancy is uncommon, it is vital for those who need it. Still, political jockeying has for decades put a target on patients who seek such care, as well as their providers — even though the gestational and viability limits imposed on abortion care make little, if any, medical sense.

The advocates’ new memo lays out the case for doing away with this framework altogether. Not only does the Roe paradigm cut off patients from care, but it also does the work of anti-abortion activists, Villavincencio said, helping them to “enshrine a place for the government in pregnancy decisions.”

The memo calls for federal, statutory protection for abortion that eliminates the incentive for governments to interfere with reproductive choices. Even though the notion of viability is fluid and can vary from pregnancy to pregnancy, the memo notes, gestational and viability limits encourage the policing of pregnancy — and have fueled a rise in its criminalization.

For the government to impose these artificial lines would reinforce the “underlying logic” of the fetal personhood movement, which argues that fetuses enjoy the same constitutional rights as actual people and is the end game for far-right anti-abortion activists and a goal laid out in the 2024 Republican Party platform. “Enshrining a viability standard in federal law is not an incremental step toward expansive rights,” reads the memo. “On the contrary, viability and gestational duration limits are an incremental step toward establishing fetal personhood.”

“Viability and gestational duration limits are an incremental step toward establishing fetal personhood.”

Ahead of the DNC, more than 200 organizations and individuals have signed on in support of the new policy memo. They point, in part, to the Abortion Justice Act, introduced in June 2023 by Rep. Ayanna Pressley, D-Mass., as a model for abortion protection going forward. The bill would eliminate government intrusion in individual reproductive health decisions and expand access to care, in part through federal grants to support the training of abortion providers, the construction of clinics, and the direct support of individuals seeking care.

The policy memo builds on a foundation that is readily available and advocates for a more inclusive vision of reproductive freedom and equality, Merritt, Raven Lab’s senior adviser, said. “The Abortion Justice Now position is an incredibly necessary tool,” she said. “We have created a tool that we really do want the movement to use to combat not just the anti-abortion movement’s playbook, but also to combat the fear of organizing toward justice.”

Enshrining Roe just won’t cut it, she said. “We have spent 49 years in a defensive posture, protecting Roe, because it’s what we got. … It is simply not the framework we need in 2024 and moving forward.”

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