If Joe Biden were elected president, his Supreme Court nominees would certainly back the expansive right to abortion asserted in Roe v. Wade and Doe v. Bolton — any time in pregnancy for almost any reason anywhere in the country — just like every other Supreme Court justice nominated by a Democrat since Byron White.
For some progressive abortion activists, that’s not enough. They view Biden with suspicion, if not outright hostility, because of his “reproductive rights” heresies, which include the following:
• Biden once said Roe v. Wade went “too far” and voted in 1982 for an amendment to allow states to overturn the Supreme Court’s decision; he changed his mind and voted against the same bill in 1983.
• Biden repeatedly voted for the ban on partial-birth abortion, a particular late-term abortion procedure in which a child’s body is mostly delivered breech before her skull is punctured and crushed. “It did not, as I would have liked, ban all post-viability abortions,” Biden said of the ban in 1997. “I was and still am concerned that in banning only partial-birth abortions, we do not go far enough.”
• Biden has repeatedly voted for the Hyde amendment, which bans federal funding for elective abortions for Medicaid recipients. “I will continue to abide by the same principle that has guided me throughout my 21 years in the Senate: those of us who are opposed to abortion should not be compelled to pay for them,” Biden wrote to a constituent in 1994. “As you may know, I have consistently — on no fewer than 50 occasions — voted against federal funding of abortions.”
“Joe Biden is trying to carve out a space for himself as the middle, moderate candidate, and he’s going to have to really get with the times and understand that standing with abortion rights is the middle, moderate position,” NARAL leader Ilyse Hogue recently told the New York Times. “I can’t tell you if he’s there or not.”
Neither could Biden’s spokesman tell the Times whether the former vice president still opposes taxpayer funding of elective abortion and late-term abortion: “Mr. Russo declined to detail Mr. Biden’s current views on specific policies he once supported, including banning all federal funding for abortion services and research.”
Biden’s opposition to unlimited federal funding of abortion for Medicaid recipients puts him out of step with his party but not the American people. In October 2016, a poll conducted for Politico and Harvard’s school of public health found that all likely voters opposed Medicaid funding of abortion by a 22-point margin (58 percent to 36 percent). But voters backing Hillary Clinton favored Medicaid funding for abortion by a 21-point margin (57 percent to 36 percent).
Does that mean Biden is toast in the Democratic primary if he continues to support the Hyde amendment? Not necessarily.
“I think he would be smart to stick with it,” Kristen Day of Democrats for Life told National Review in a phone interview after Biden announced his campaign on Thursday morning. “There’s a third of the Democratic party that’s pro-life. More than that oppose late-term abortions. The pro-abortion vote is going to be split 19 ways or 20 ways. He could differentiate himself with a more reasonable position on this.”
Polling backs up Day’s description of her party: A recent Marist survey found that 34 percent of Democrats identify as pro-life. And in 2014, Quinnipiac asked voters: “As you may know, in 2013 the House of Representatives approved legislation that would ban virtually all abortions nationwide after 20 weeks of pregnancy, except in cases of rape and incest that are reported to authorities. Would you support or oppose such legislation?” Among Democrats, 46 percent supported the bill, while 47 percent opposed it. As Biden contemplated a presidential bid in 2015, liberal columnist Michelle Goldberg worried that Biden might sign the bill banning abortions later than 20 weeks after conception, when premature infants are old enough to survive outside the womb. But only three Democratic senators voted for the bill in 2018 (Joe Manchin of West Virginia, Bob Casey of Pennsylvania, and Joe Donnelly of Indiana).
A Democratic president, Jimmy Carter, first signed the Hyde amendment into law, but subsequent Democratic presidential nominees opposed it. There is a long history of Democrats (from Al Gore to Jesse Jackson to Richard Gephardt) moving left on abortion when they run for president. It remains to be seen whether Biden will follow their lead. He already moved left once on abortion in the 1980s. More recently he has has come under fire for holding an “apology tour” ahead of his campaign announcement. Reversing himself on a position he’s held for decades as a matter of conscience could be seen as too craven.
While we don’t know exactly where Biden will come down on the issue as a 2020 candidate, one thing is clear: “He’s going to face tremendous pressure,” says Kristen Day. Her organization sent out a questionnaire to Democratic presidential campaigns two weeks ago asking candidates if they welcome pro-life voters in the party and about their position on unrestricted late-term and taxpayer-funded abortion. So far, not a single Democratic campaign has returned it.