Biden Has Pledged to Restore Roe. Some Say That Won’t Cut It.

President Joe Biden reasserted his support for expanding abortion access in his State of the Union address on Thursday, in an effort to contrast himself with the presumptive Republican presidential nominee, former President Donald Trump, and emphasize what has recently been a winning issue for Democrats.

In his speech, Biden pledged to “restore” Roe v. Wade, the 1973 Supreme Court decision that established the right to an abortion, and which was overturned by the court in 2022. In his speech, Biden said that he believed Roe “got it right.”

“If Americans send me a Congress that supports the right to choose, I promise you: I will restore Roe v. Wade as the law of the land again,” Biden said to cheers and applause from the Democratic side of the chamber, where many of the Democratic women representatives were wearing white in support of reproductive rights,and pins calling for the protection of in vitro fertilization.

But some advocates believe that merely reinstating access as it existed under Roe is insufficient for truly protecting abortion rights. Biden’s remarks on Thursday, and the larger messaging by Democrats ahead of a difficult election season, reflect an ongoing struggle within the movement to determine how to truly ensure everyone who wants an abortion can obtain one.

“To go back to a Roe framework means that we would be going back to a normalization of criminalizing pregnant people, surveilling pregnant people, forced medical treatment, and bans and restrictions that amount to bans for people across states,” said Bonyen Lee-Gilmore, vice president of communications at the National Institute for Reproductive Health. Even when Roe was the law of the land, Lee-Gilmore noted, many states approved laws limiting abortion access; according to the Guttmacher Institute, nearly 1,400 restrictions were enacted in states between 1973 and the first half of 2022.

Roe established the right to an abortion up to the point when a fetus can survive outside of the uterus, commonly referred to as “viability.” At the time Roe was decided, fetal viability was considered to occur at 28 weeks of pregnancy. A subsequent Supreme Court decision in 1992, Planned Parenthood v. Casey, determined that fetal viability instead occurred at around 24 weeks of pregnancy, but also ruled that states could not implement restrictions that created an “undue burden” on the patient seeking an abortion.

The idea of “restoring Roe” thus lacks sufficient clarity. “Part of the problem is that people mean different things when they say ‘Roe,’ and part of the problem is that—under any understanding of Roe—it was considered never to be enough by a lot of people,” said Mary Ziegler, a law professor at the University of California, Davis, who has written several books on the history of abortion rights and access. Depending on interpretation, Biden could be referring to the 1973 version of Roe, which required any abortion restriction to be subject to the judicial doctrine of “strict scrutiny”; or he could be calling for a return to 2021 Roe, in which several states had already created new hurdles to accessing the procedure.

Because Roe had built-in restrictions to abortion access based on viability, some reproductive rights activists say that it paved the way for its own demise. Writing the majority opinion in Dobbs v. Jackson Women’s Health, which overturned Roe, Justice Samuel Alito argued that “the arbitrary nature of a viability rule is a terrible flaw in a judicially announced rule of constitutional law.”

In the years since the Dobbs decision was handed down, the abortion rights movement has been divided on whether Roe should be reinstated in some form. Still, doing so would allow for greater abortion access than is currently available in nearly half of all states. “We have to get federal protection back in place,” said Ryan Stitzlein, vice president of political and government relations at Reproductive Freedom for All, formerly known as NARAL Pro-Choice America. But while it’s an important “first step,” Stitzlein continued, it is not the last.

“We don’t view the restoration of the protections of Roe as, you know, the end of the fight here. This is just essentially building back the floor where we were two years ago,” he said.

Since the fall of Roe, multiple states have considered constitutional amendments to protect abortion rights. This year, measures allowing for abortions up until fetal viability may make it onto the ballot in several red and swing states, including Arizona, Montana, Nebraska, Arkansas, Missouri, South Dakota, and Florida.

However, critics say these amendments could still result in a penalization of miscarriages. In 2023, voters in Ohio approved a state constitutional amendment that protected access to abortion, fertility treatment, and reproductive care; it also allowed the state to prohibit abortion after fetal viability except when “necessary to protect the pregnant patient’s life or health.” Shortly before the vote on the amendment, Ohio woman Brittany Watts was charged with “abuse of a corpse” after miscarrying and disposing of the remains of a nonviable fetus after 22 weeks—at the time, the point at which abortion was no longer legal in the state.

A judge referred the case to a grand jury in early November, saying that the amendment under consideration—known as Issue One— revolved around “at what point something becomes viable.” A grand jury declined to indict Watts—who attended the State of the Union as a guest of Representative Joyce Beatty—earlier this year.

“We can absolutely lose by winning, and I think that’s an important concept to remember when we’re talking about constitutional amendments that will permanently enshrine the state’s interest in pregnancy decisions,” said Lee-Gilmore.

The language of reinstating Roe has largely been adopted among congressional Democrats. “What we all know ultimately needs to be done is restore Roe to the law of the land,” said Senator Patty Murray, a Democrat, in a press conference before the State of the Union address on Thursday.

There are some bills in Congress that would largely reinstate Roe. The Women’s Health Protection Act would guarantee the right to access an abortion before a fetus is viable, as well as functionally reestablish the “undue burden” standard. A bipartisan group of senators have also introduced the Reproductive Freedom for All Act, which is largely similar, but would also explicitly preserve so-called “conscience protections” for religiously affiliated medical institutions that would not perform abortions.

In a divided Congress, neither measure is likely to pass. However, even when Democrats controlled both the Senate and the House when Biden first took office, efforts to codify Roe were blocked by Republicans using the filibuster. As such, Biden may have more leeway to offer a vision for abortion rights beyond Roe.

But extending his ambitions beyond Roe could be politically risky. Polling shows that a majority of Americans believe abortion should be legal only under certain circumstances, and voters often signal support for some abortion restrictions. Still, the percentage that believes it should be legal under any circumstances has grown in recent years. According to Gallup, 34 percent of Americans believed abortion should be legal under any circumstances in 2023—a slight decrease from 35 percent in 2022, but a steady rise from previous years.

That subsection of Americans that believes abortion should be accessible without any restrictions will be an important demographic for Democrats to win over come November. A 2023 survey by nonpartisan research firm PerryUndem found that 55 percent of women ages 18 to 44 would support a hypothetical ballot measure that would create that right to an abortion without restrictions. According to recent polling by the Kaiser Family Foundation, the voters most motivated by abortion tend to be younger, Democratic-leaning, and want abortion to be legal in all cases. While only 12 percent of voters overall say abortion is the “most important issue” in their 2024 vote, according to the KFF poll, that percentage rises for women, Black women, and women of reproductive age in particular.

Democrats have historically relied on women and Black voters to propel them to victory, and have worked to increase their turnout among young voters. These segments of the electorate were particularly significant to Biden’s win in 2020. That year, Biden won 55 percent of women overall, including 95 percent of Black women, and Millennial and Generation Z voters supported him by 20 percentage points, according to Pew Research Center.

The call to “restore Roe,” even with Roe’s inherent restrictions, could appeal to those voters who are not deeply entrenched in the politics of the abortion rights movement, and merely associate it with access to the procedure.

“Losing a constitutional right is a big deal … even if the right that was taken away was imperfect,” said Ziegler. “For regular Americans, restoring Roe might have emotional resonance.”