In last night’s vice-presidential debate, Joe Biden gave America a “guarantee” that no Supreme Court Justice nominated by President Obama would ever vote to overturn Roe v. Wade, the 1973 decision creating a right to abortion.
Not that the president would ever use abortion as a litmus test — heaven forbid. Biden put that scurrilous charge to rest by promising that the president looked only for “open-minded” judges. About as open minded, it would seem, as your average Iranian mullah.
Even for Biden — famous as he is for over-the-top remarks — his pledge to deliver future Supreme Court votes in favor of Roe is remarkable. The Constitution provides for separation of powers, including an independent judiciary that cannot be bullied by the executive. That fundamental principle appears lost on Biden as well as his boss, who once used the State of the Union address to publicly humiliate the Supreme Court for defying his wishes in the campaign-finance case of Citizens United.
But then, Biden never has been a stickler for constitutional niceties. According to the vice president, a vote to overturn Roe would be a vote to “outlaw abortion.” In reality, overturning Roe would simply return abortion regulation to the state legislatures, where it had been for two centuries before 1973. Under the Tenth Amendment, the states retain all the powers not specifically delegated to the federal government; those powers include social issues like abortion. The Roe Court disenfranchised state legislatures on the basis of a federal “right to privacy” that is not actually written anywhere in the Constitution.
The fact that abortion is an emotional issue is all the more reason to have it decided via the political process at the state level. As Republican challenger Paul Ryan pointed out — in between Biden’s constant interruptions — abortion policy should be made not by “unelected judges,” but rather by “the people through their elected representatives.” If Roe were overturned, abortion on demand would probably remain legal in many states. But not all. And the terrifying prospect of state autonomy is what spurred Joe Biden to offer an ironclad promise that Roe’s federal power grab will continue under President Obama.
Was Joe Biden’s “guarantee” just another one of his trademark verbal gaffes? Apparently not. “I never say anything I don’t mean,” the vice president reassured us last night. That is alarming indeed.
— Adam Freedman covers legal affairs for Ricochet. His latest book is The Naked Constitution: What the Founders Said and Why It Still Matters.