While steadfastly refusing to cite any limits on how late into a pregnancy non-emergency abortions should be allowed, Kamala Harris has claimed that her campaign promise “to put back the protections that are in Roe v. Wade into law” would not legalize abortion until the moment of birth.  But if Roe were to be “codified” through legislation and then interpreted in the same way that it was for the 50 years that it was Supreme Court precedent, it would do exactly that. However, a case that went before the Supreme Court this year — albeit probably one that you have not heard much about — showed a less extreme path that is possible, if politicians are willing to move past the obsolete and confusing framework of Roe.

The unheralded case of interest is Moyle v. United States.  After the Supreme Court overturned Roe v. Wade in its 2022 Dobbs v. Jackson decision and returned regulation of abortion primarily to legislatures (i.e. state legislatures or potentially the United States Congress), the state of Idaho outlawed most abortions.  The Federal government quickly struck back.  The Department of Health and Human Services attempted to use its regulatory authority to at least partially preempt state abortion laws, including Idaho’s.  HHS conditioned Medicare funding for hospitals on a rule that they facilitate abortions in cases involving non-life threatening health risks to the mother of an unborn child, despite the fact that Idaho only allowed emergency abortions in life-threatening circumstances.

This is not the first time that the question of life versus health has been raised in the context of exceptions to abortion law; indeed “health exceptions” have been both controversial and central to the evolution of the law literally since that day Roe was decided.  The original Roe decision stated that abortions must be allowed “for the preservation of the life or health of the mother” in the circumstance where the courts supposedly still allowed abortions to be prohibited: after an unborn child had become viable.  States tried enacting late-in-term abortion laws compliant with Roe by including exceptions for risks of non-life threatening physical injuries to the mother of an unborn child, but the Federal Courts consistently struck these laws down.

Key cases were in Doe v. Rampton in 1973, A Woman’s Choice-East Side Women’s Clinic v. Newman in 1995 and Women’s Medical Professional Corporation v. Voinovich in 1997.  In each case, the courts proceeded in two steps.  First, they rejected as unconstitutional any attempt to define a health exception expressly in terms of physical health, ruling that Roe’s health exception had to encompass mental health. Then, they invalidated the late-in-term prohibitions in their entirety, ruling that the enumeration of exceptions could not be severed from the rest of the law, removing all limits on late-in-term abortions, even in non-exceptional, non-emergency cases.

The results was that — despite the frequent assertions made by supporters of legal abortion that Roe v. Wade permitted states to enact laws against third-trimester abortions (in the context of the original 1973 Roe ruling) or post-viability abortions (as emphasized when Roe was upheld in 1992 in Planned Parenthood v. Casey) — for the 50 years that Roe was precedent, no law prohibiting abortion before the delivery of a baby had begun survived a substantive challenge in the Federal Courts.

For five decades, opponents of abortion were left with a choice between laws where late-in-term abortions could be performed on viable children when there was no risk of physical injury or death to the mother or no late-in-term abortion laws at all.  It was reasonable to wonder if the courts had ever meant what they had said in Roe and repeated in Casey about decisions on post-viability abortions being left to the states.

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It should not be surprising to learn that pro-lifers are skeptical of the premise of broad exceptions to laws against abortion.  Pro-lifers do not believe that it is acceptable to end the life of one person to “protect” the mental health of another.  What is more surprising to learn is that the Biden administration — in a dramatic break with the five decades of case law under Roe — took a strong step in Moyle v. United States towards agreeing with pro-lifers that the “health” exception for abortion should not include mental health.

Idaho sued the Federal government, to prevent HHS from forcing a general “health” exception into the practice of abortion in Idaho (and elsewhere). Their argument was that Federal funding regulations could not be used to compel hospitals, doctors, or anyone else to violate a state’s criminal laws, in Idaho’s particular case, their abortion law that only made an exception for life-threatening medical emergencies.  The Federal District Courts for Idaho issued an injunction, preventing Idaho from enforcing its abortion law to the extent that it conflicted with the Federal regulation, and it was upheld by the Ninth Circuit Court of Appeals.

Idaho appealed to have the injunction lifted, and the Supreme Court this term agreed to hear their appeal.  But at the end of its term, the Supreme Court took the unusual step of returning the case to the lower courts on the grounds that it should never have been taken — for reasons that could be very important for the future of abortion law and policy in the United States.

The scope of the health exception sought by the Federal government and whether it included mental health was a key consideration. During Supreme Court oral arguments, the Biden Administration’s Solicitor General, advocating for preemption of Idaho law, was asked directly whether the Federal health exception regulation was intended to include mental health.  In a surprising development, the Solicitor General dismissed the idea that an abortion would be an appropriate response to any mental health emergency, breaking with 50 years of Federal interpretation of the meaning of health in the context of abortion law: “[W]hen a woman comes in with some grave mental health emergency, if she happens to be pregnant, it would be incredibly unethical to terminate her pregnancy”.

To confirm that the scope of this answer was as wide as it seemed, the Justice who posed the initial question asked a second time whether mental health was included in the health exception to abortion law sought by the Federal government, and the Solicitor General answered even more unambiguously:

“With respect to what qualifies as an emergency medical condition, it can include grave mental health emergencies, but let me be very clear about our position. That could never lead to pregnancy termination because that is not the accepted standard of practice to treat any mental health emergency.”

In the context of Idaho law, where abortion is legal only in exceptional cases, this meant that the mental health exception would not apply at any time during a pregnancy. When the Supreme Court issued its decision to return the case to the lower courts, three Justices signed on to an opinion saying that limited scope of the health exception as stipulated by the Solicitor General was one reason why.

Of course, while Roe was controlling legal precedent, the position of a Solicitor General or a Presidential administration would have carried no legal or regulatory weight; the judicial decrees establishing a health exception that included mental health would have been the end of the matter.  With Roe overturned however, a small piece of common ground, one that had not been available for 50 years, had opened up.

“Codifying” Roe v. Wade in statute however, without forthrightly addressing the issue of late-in-term abortion, could easily foreclose this space.

If Congress were to simply recycle the language of Roe into Federal statute, including the original broadly defined “health” exception, the only thing we can be certain of is that the scope of the law would be decided by lawsuits.  The courts might look to the precedent established in Dobbs, where a law without a mental health exception prohibiting abortion after 15 weeks was upheld and decide that states retain meaningful discretion to limit late-in-term abortions where the Federal law is vague.  On the other hand, the courts might also look at a decision to write the original language of Roe into statute and decide that the legislative intent was to restore Roe as it was always interpreted, with no enforceable limits on late-in-term abortion allowed.

Supporters of liberal abortion laws, and especially Democratic Presidential nominee Kamala Harris, should clearly tell the public which of these legal regimes they support: recreating Roe in its entirety as it was for 50 years, where no late-in-term abortion law was allowed on the basis of the mental health exception, or continuing the position taken by the Biden administration that mental health situations do not justify emergency abortions.  To do otherwise is to deny voters the information they need to make a clear choice on a literal matter of life and death.  Any candidate for office who supports “codifying” Roe but is not willing to be clear here, who instead seeks to maintain a strategic ambiguity by not providing the public with any more detail than saying they support a now-defunct court precedent, can fairly and accurately be described as supporting of laws that enable abortion until the moment of birth.