The Abortion Policy Results of Election 2020
Watch John Gerardi’s quick election video summary here.
Every presidential election can have a major impact on abortion policy at the state and national levels, and 2020 was no exception. The differences between Joe Biden and Donald Trump on the abortion question could hardly have been more stark. How does the 2020 election impact abortion nationwide? The following is our analysis:
The Results as they stand now
As of this writing, some of the results of the 2020 election are still in dispute. While Joe Biden will likely become the next president, there is an extremely remote chance for a change in the results, should Donald Trump ultimately win Pennsylvania and two additional states through a combination of lawsuits alleging electoral fraud and audited recounts. Democrats will maintain control of the House of Representatives, but with an incredibly small majority and a caucus fractured between ultra-leftists and pragmatic liberals. Republicans will likely maintain control of the Senate following runoff elections on January 5th for the two Senate seats in Georgia, though it is possible that, if Democrats win both seats, they will attain a technical Senate majority in a 50-50 split with Kamala Harris as the tiebreaking vote. If Republicans win one seat, as is likely, they will have a 51-49 majority; if they win both, it will be 52-48. For the sake of this article, we will assume these outcomes: Joe Biden as president, narrow Democrat control of the House, narrow Republican control of the Senate.
Throughout the fall, most polling data indicated that Joe Biden would gain a dominant victory, and bring with him sweeping Democrat majorities in the House and Senate. Pro-lifers were concerned that, if those polls were accurate, a doomsday scenario of massive pro-abortion legislative victories could ensue.
Those polls were inaccurate. Mr. Biden’s win was, if anything, a narrow one, and he did not bring the kind of coattail support for down-ballot candidates one often sees from a dominant presidential victory. In fact, Republicans held their Senate majority and gained seats in the House, putting themselves in prime position to retake the House in the 2022 elections. As a result, none of the major abortion legislation favored by Democrats is likely to pass during the next four years of a Biden administration. Here are those legislative priorities:
- The Filibuster Stands: To accomplish any of their most ambitious legislative priorities for abortion policy or otherwise, Democrats first needed to abolish the filibuster rule in the Senate. The filibuster is a longstanding, internal Senate rule that requires 60 out of 100 votes to advance most non-budgetary pieces of legislation, rather than a simple majority. It has been in place for over a century, and both parties have utilized it aggressively to block sweeping legislation when in the minority. However, liberal activists eager for victories urged Senate Democrats throughout the fall to abolish the procedure in order to attain various policy goals without Republican interference.
It will be impossible for Democrats to eliminate this procedure. Republicans will likely hold the Senate majority, and will refuse to even consider a proposal to eliminate the filibuster. Even if the Democrats can achieve a 50-50 technical majority, at least two Democrats, Dianne Feinstein of California and Joe Manchin of West Virginia, are on the record opposing the abolition of the filibuster.
- No Federal Abortion Law: With the filibuster still intact, Democrats cannot achieve one of their major policy goals, a federal law codifying Roe v. Wade. Abortion is currently legal nationwide largely due to Supreme Court decisions like Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey, which purport to guarantee abortion as a right emanating from the Constitution. Pro-choice advocates are concerned, however, that those decisions could be overturned by a Supreme Court that currently has six Republican appointees, especially with Brett Kavanaugh and Amy Coney Barrett replacing known abortion supporters Anthony Kennedy and Ruth Bader Ginsburg. If this happened, every state could decide on abortion’s legality for itself, with a number of states willing to restrict abortion drastically.
By passing a simple law to enact the major provisions of Roe v. Wade and Doe v. Bolton—with majorities in the House and Senate, and the president signing it—pro-choice advocates could guarantee legal abortion for all nine months of pregnancy and for any reason nationwide, rendering a Supreme Court overturning of Roe moot. Furthermore, such a statute could sweep away most of the pro-life laws that state legislatures have passed throughout the country since the early 1990’s, policies like parental notification or consent before a minor’s abortion, health and safety regulations on abortion clinics, 24-hour waiting periods, informed consent requirements prior to abortion such as ultrasounds, and more. Without the votes necessary for ending the Senate filibuster, this legislation will not pass. Even in the House, Democrats will be leery to vote for such controversial legislation with such a narrow and vulnerable majority.
- Federal Review of State Abortion Laws: During her run in the Democrat primary, Kamala Harris also floated a piece of federal legislation to prevent state governments from passing pro-life laws. Her proposal would give the federal Department of Justice the ability to “vet” a proposed state law to examine its constitutionality before it went into effect. This would give the federal government a kind of veto power over state legislation in a suffocating fashion. Again, without abolishing the filibuster or a Senate majority, this proposal will be impossible to pass.
- Packing the Courts: The most radical legislative proposal of the pro-choice side was the idea to “pack” the Supreme Court and lower federal courts. While the Supreme Court has had 9 seats for 150 years, this number is not dictated by the Constitution. A simple law passed by Congress and signed by the president could alter that number. “Packing” the court refers to the notion of expanding the number of seats in order to attain a certain ideological outcome. Various Democrats have proposed adding four seats to the Court and allowing Biden to fill all of them, giving Democrat appointees a 7-6 liberal majority, rather than the current 6-3 GOP-appointee majority. Kamala Harris and others have also endorsed the broader idea of “court reform,” as she calls it, creating new seats for the lower federal courts in order to allow Democrats to stack the federal judiciary with Biden appointees.
This proposal is doomed not only because of the filibuster, but also because more pragmatic Democrats may not vote for it. Both Senator Feinstein and Senator Manchin are on record opposing packing the Court, and other Democrats may feel similarly. Joe Biden himself campaigned against the proposal in 2019, and never unequivocally endorsed it at any point in the campaign. The very idea of court-packing is massively unpopular in national opinion polls. With their narrow majority in the House, Democrats will be afraid to vote for such radical proposals and jeopardize their members who could lose their seats in 2022, when Republicans could be poised to take the House.
- Hyde Survives: The Hyde Amendment is a rider that is attached to the federal budget every year. It specifies that no federal dollars may fund abortion directly in federal healthcare programs such as Medicaid. By restricting this funding, the Hyde Amendment has likely saved the lives of millions of unborn children since its original enactment in 1976. Democrats have made it a priority in their party platform to abolish the Hyde Amendment. Even Mr. Biden, who supported the Hyde Amendment for his entire career in the Senate and as Vice President, changed his position in 2019 to favor its abolition, at the behest of pro-choice activists. With Republicans holding the Senate, Biden and Pelosi will likely need to concede the Hyde Amendment in order to get Republican support to pass any federal budget.
There are various areas of executive action where, unfortunately, Mr. Biden is likely to achieve disastrous outcomes to fund and spread legalized abortion. In these areas, there is little that pro-life forces can do to stop him.
- Abortion funding: There are a number of ways in which a Biden administration can fund abortion. First, they can do so by reversing the Mexico City Policy. This policy was adopted by President Reagan and every subsequent GOP president, and it cuts off all federal funding for foreign NGOs that promote abortion for birth control purposes. One of the chief beneficiaries of this change will be Planned Parenthood International. Planned Parenthood could also see funding restored through the Title X program, reversing a Trump administration policy that cut off roughly $60 million per year to the abortion giant. Biden could also reinstate Obama-era policies funding research on fetal tissue samples derived from aborted fetuses. Unfortunately, President Trump never rescinded the Obama-era rules funding embryo-destructive stem cell research, so those policies will remain intact.
- Suing Nuns: After a Supreme Court decision gave them a brief reprieve last June, Mr. Biden promised to renew lawsuits against the Little Sisters of the Poor, an order of Catholic nuns, and other similarly-situated religious nonprofits who are resisting Obama-era HHS regulations requiring employers to cover abortifacient contraception in their employer-based health insurance plans. This attack on religious liberty will likely be held up in the Courts, and it will be interesting to see how the newly-formed Supreme Court with Amy Coney Barrett will address this problem.
- Deregulating “Medication” Abortion: Perhaps the most significant change Mr. Biden can make to the culture of legalized abortion in America will be through FDA deregulation of the abortion pill, otherwise known as mifepristone or RU-486. “Medication abortion” is fast becoming the most common method of performing abortions. It is a two-step process by which a woman within the first 10 weeks of pregnancy ingests mifepristone within the context of a clinic. This medication cuts off the fetus’ food supply, leading to the fetus’ death. A day or two later, the woman then takes a medication called misoprostol (usually at home) to start contractions and complete what is essentially an artificially-induced miscarriage. While there are serious possible side effects to this abortion method, it does not require a doctor to perform it, unlike a more conventional “surgical” abortion.
Abortion advocates are urging the FDA to loosen its regulations on the practice, particularly by expanding the 10-week window for utilizing it, and by allowing women to take mifepristone at home rather than in the clinical context. If this deregulation is accomplished, it could result in abortion being as accessible as an Amazon Prime shipment. Pregnant women can download a telemedicine app onto their phone, chat with a nurse practitioner, receive a prescription for abortion pills over their smartphone, and have the pills arrive within days. This method of abortion delivery could almost render abortion clinics obsolete, while making abortion enormously widespread and accessible.
California: Prop 14 Passes
On the California stage, we were deeply distressed to see Proposition 14 pass with a narrow vote. Proposition 14 is a $5.5 billion bond measure (which will cost the taxpayers $7.8 billion) to fund embryo-destructive stem cell research through the California Institute for Regenerative Medicine. This is in spite of the fact that CIRM has burned through its initial $3 billion of funding, with zero FDA-approved treatments or cures to show for it. The legislation continues to prioritize human embryos for research in spite of the clear scientific evidence that embryonic stem cells are not particularly useful for medical research. This bill is a disastrous destruction of human life, and an astounding waste of money.
In summary, we cannot view the 2020 election as a victory. Mr. Biden’s likely executive actions will have a significant impact on abortion regulation and availability in a fashion that could lead to tens of thousands of additional deaths, and California’s situation remains bleak. However, the chief legislative goals of abortion advocates are stymied for the next four years, and, due to the confirmation of Amy Coney Barrett to the Supreme Court prior to the election, the Court has a strong majority of originalist jurists who can stop pro-choice interference in religious liberty rights, and who can chip away at Roe and hand abortion regulation over to the states.