Author : Vivek Mishra

Expert Speak Raisina Debates
Published on Sep 28, 2022 Updated 6 Hours ago
Instead of using the overturning of Roe v. Wade to further the political divide, the Biden administration must focus on tangible action.
Roe v. Wade: A prescriptive agenda for Biden The United States Supreme Court on 24 June this year overturned its 1973 Roe v. Wade ruling that had previously guaranteed a constitutional right to abortion for women in the country. The judgement was widely hailed as reformist in its mandate to limit inordinately restrictive state regulation of abortion. The decision to overturn Roe v. Wade is expected to have a wide range of repercussions for women, minorities, lower-income individuals, and other marginalised groups. As the country’s political divide deepens, the Biden administration is expected to build back trust with their voters with the politics around abortion rights gaining centre stage in the upcoming midterm elections in November this year. Among important steps in this regard by the Biden administration should be providing resources to overburdened abortion clinics, and attempting to strengthen privacy and data laws in the country to protect individuals impacted by this ruling. Similar to previous democratic leaders, the Biden administration has placed the blame for the overturning of Roe v. Wade on the Opposition, namely conservative republicans; to reverse the new ruling, the Biden administration is urging the general population to vote for leaders who will support upholding the landmark judgement. While it is true that the reversal of Roe v. Wade was possible in large through the appointment of three conservative Supreme Court Justices; and that voting for senators and representatives who support the judgement will help codify it into law, relying too heavily on a voter base that has consistently been let down and alienated by the administration’s inaction will likely not yield results. The Democratic Party has made many promises over the years to protect abortion rights without taking impactful concrete actions, such as codifying Roe v. Wade into law. Consistent with this theory, a recent Washington Post poll found that individuals that support abortion access are less likely to vote in the upcoming November midterm elections due to their discontent with the Democratic Party leadership and their lack of faith in its ability to effect change.

Among important steps in this regard by the Biden administration should be providing resources to overburdened abortion clinics, and attempting to strengthen privacy and data laws in the country to protect individuals impacted by this ruling.

The Biden administration, along with the rest of the Democratic Party, should provide a clear and unified plan of what it intends to do to support and aid women’s reproductive health in the country— much like the unified dissent of Justices Breyer, Kagan, and Sotomayor in Dobbs v. Jackson (that overturned Roe). There is great power in liberal democracies, however, the Biden administration needs to rebuild trust between its voter base and party through tangible action instead of speech to secure its votes. At the forefront of the Biden administration’s response to Roe v. Wade is its intent to protect interstate travel for women seeking an abortion—from states that have banned abortion to those in which abortion is legal. The administration intends to uphold this right by “ any effort by state or local officials . . . to restrict travel” (Keith, 2022). While some states have threatened to pass laws that would prosecute women who seek an abortion across state lines, Ilya Somin, a law professor at George Mason University, argued that in practice, prosecuting women for out-of-state travel is hard to obtain because of “several longstanding constitutional principles.”  Somin relies on several Supreme Court rulings to support this argument, dating back to the 1867 Crandall v. State of Nevada landmark decision that upheld interstate travel for people. Due to this constitutional right, which has been upheld and reinforced in several subsequent rulings, Somin stated that allowing states to impose abortion travel bans would be hard without also giving states broad power to restrict the travel of residents for a wide range of other purposes.

With the fear that women may have to travel hundreds of miles to receive an abortion becoming more of a reality for women from southern and mid-western states, lower-income women, who are disproportionately women of colour, will be unable to afford the cost of travel.

As the legality of banning interstate travel is somewhat unattainable, the Biden administration should not focus its efforts on protecting a hypothetical interstate travel ban; instead, it should recognise and act on the concern that merely protecting the right to travel does not ensure access to abortion care for all women. The overturning of Roe v. Wade threatens to disproportionately impact lower-income women, women of colour, and those with disabilities. With the fear that women may have to travel hundreds of miles to receive an abortion becoming more of a reality for women from southern and mid-western states, lower-income women, who are disproportionately women of colour, will be unable to afford the cost of travel. This does not only include the cost of the travel but also the cost of taking time off of work. To minimise this disproportionate impact, the Biden administration should offer greater job protection for individuals in these instances, attempt to support organisations that seek to cover this cost of travel and provide resources to abortion clinics in states that will perform medical abortions to aid in their ability to deal with the large influx of women travelling from out of state. In addition to expanding the scope of its already proposed policies, the Biden administration should seek to recognise this ruling’s threat to other liberties. Current characterisations of privacy and legislation are not able to capture the threat that technological advancements pose to individuals’ privacy. The ubiquitous nature of surveillance has allowed detailed information to be collected, stored, analysed, distributed, and accessed easily and at a much larger scale; through this, individuals often lose control over their own information and become vulnerable to private corporations and the government. The secrecy paradigm, which assumes that when information is in the public realm it can be longer be construed as private, dominates current law surrounding privacy protections for individuals. While the secrecy paradigm captures a large proportion of the threats that surveillance creates, it is unable to completely shield individuals from privacy violations in this digital age.

The Biden administration should seek to rid laws of the secrecy paradigm to acknowledge that an individual’s privacy can be invaded even if the information has entered the public realm.

In a post-Roe v. Wade era in which states that have banned abortion threaten to prosecute women who seek one, period tracking apps can play an instrumental role in building their evidence. To prevent conservative state governments from obtaining dossiers on women’s menstrual cycles, which could provide evidence of potential pregnancies, the Biden administration should seek to pass laws that would limit private corporation’s ability to distribute information to third parties—ensuring that apps that collect sensitive information about an individual’s health or body are given additional security. The Biden administration should seek to rid laws of the secrecy paradigm to acknowledge that an individual’s privacy can be invaded even if the information has entered the public realm. If Biden focuses on reinforcing privacy, not only could that shield women from potential prosecution in the short run, but it could also awaken the public to longstanding privacy issues. A greater understanding of privacy issues could also encourage individuals to give back women the right to make personal and private decisions about their bodies without interference from the government. In the country’s current political climate, it is extremely easy to blame one single party for overturning Roe v. Wade. However, the Biden administration should not use this as an attempt to further the political divide as this would simply exacerbate racial and income disparities across the country, whilst diverting attention from the issue at hand—the impact overturning the judgement will have on women’s reproductive health and their autonomy in the country.
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Author

Vivek Mishra

Vivek Mishra

Vivek Mishra is a Fellow with ORF’s Strategic Studies Programme. His research interests include America in the Indian Ocean and Indo-Pacific and Asia-Pacific regions, particularly ...

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Contributor

Neha Jain.

Neha Jain.

Neha Jain is based in Mumbai. She has graduated from Hamilton College Clinton as an Economics and World Politics double major and has worked until ...

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