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Democrats want to ‘restore’ rights in Roe v. Wade but differ on what that means

Some Democrats are open to certain abortion restrictions, while others insist on federal rights that go beyond Roe v. Wade.
An abortion rights demonstrator protests outside the Supreme Court
A protester outside the Supreme Court in June 2022.Hannah Beier for NBC News file

WASHINGTON — Ever since the Supreme Court decision last year that eliminated nationwide abortion rights, Democrats have cast their position on the issue as simple: pass legislation codifying the rights in Roe v. Wade into federal law.

Some Democrats are open to limiting the scope of the federal right on abortion and permitting some flexibility for states. Others insist on a sweeping national standard that goes beyond the one set by Roe v. Wade, which gave women the right to have an abortion before a fetus is considered viable and allowed states to set limitations for abortions after that time frame.

Sen. Elizabeth Warren, D-Mass., said Democrats are open to debating legislative language to set a standard for abortion rights after fetal viability and blamed Republicans for a lack of one because they’re accusing Democrats of supporting abortion up until birth.  

“Republicans want to drag it off to some fake hypothetical about [abortion] the day before a baby is born because they think they can inflame their base, but Roe was always about a woman makes her decisions pre-viability, and post-viability the interests start to shift,” Warren said in an interview. “And there is room for constraint.”

A fetus is generally considered viable after 24 weeks of pregnancy.

The notion of debating any limitations around a federal right to abortion does not sit well with some key members of the Democratic Party, particularly reproductive rights advocates.

“We’ve romanticized Roe, but it was the bare minimum,” said one abortion-rights advocate, who spoke on condition of anonymity to plead with Democrats not to wade into a fight over limits because they weren't authorized to speak publicly on behalf of their organization.

“The message works: Don’t trample on my freedom to make decisions about my body. Period. End of discussion,” the advocate said. “As soon as you start saying ‘this day, this week,’ you’re still taking agency away from somebody.” 

The disagreement among Democrats highlights that it’s not just Republicans who are grappling with precisely how to position themselves and message to voters on abortion. And Republicans are hoping to exploit that lack of consensus to try to diminish the political upper hand in recent elections that Democrats have enjoyed following the overturning of Roe v. Wade and adoption of strict abortion laws in GOP-led states.

Sen. Rick Scott, R-Fla., for instance, seized on the view of some Democrats that there should be no restrictions on abortion to cast the entire party as extreme and in favor of abortions up until birth. "We ought to tell what we believe and explain who they are," Scott said in an interview. "They’re radical and we’re not."

Abortions after 21 weeks of pregnancy make up about 1% of all abortions, according to KFF, and are usually done in cases of fetal abnormality or when the life of the mother is in danger.

Public polling shows a majority of Americans support abortion rights, with 61% saying the procedure should be legal in all or most cases, according to the Pew Research Center. And few Americans on either side of the debate take an absolutist view on the legality of opposing or supporting abortion at all times, according to Pew, underscoring the nuance and complexity of the issue.

Vice President Kamala Harris demonstrated the conundrum Democrats are in when she was asked during an interview that aired Sunday if there should be limits on the right to an abortion. “We need to restore the protections of Roe v. Wade,” Harris said on CBS’ “Face the Nation,” repeatedly returning to that positioning no fewer than nine times when pressed on the party's position.

The evasiveness of the vice president, who has made abortion rights a signature part of her platform heading into the 2024 campaign, exposed the tensions within the party when the discussion gets more specific on the scope of federal laws.

White House officials acknowledge there is some daylight between the administration’s position of wanting to codify the protections of Roe v. Wade into federal law and the position of advocacy groups that don’t believe Roe goes far enough. But they say they believe Americans are more focused on the right to abortion that was taken away than on identifying a cutoff for abortions at a specific number of weeks.

The White House position has been that codifying Roe v. Wade in federal legislation is the “only path” to restoring abortion access, and administration officials repeatedly stress they are not proposing something new. They argue that Roe carefully struck a balance between the right to an abortion earlier in pregnancy and the ability of states to regulate later in pregnancy.

Some congressional Democrats want to pass a bill — called the Women’s Health Protection Act — that would prohibit states from outlawing abortion before viability, as well as after viability if a medical provider determines that a woman’s life or health is at risk. The WHPA, which failed to pass Congress in 2022 even though nearly all congressional Democrats voted for it, also would establish a right to receive abortion services through drugs or telemedicine.

Sen. Tammy Baldwin, D-Wis., who faces re-election in a swing state next fall, said she remains focused on passing the WHPA, saying it has the strongest support of any abortion rights measure put forward at this point.

“And in a state like Wisconsin, where people are subjected to a measure that was passed in 1849 — a total criminal abortion ban — this issue has a sense of urgency,” Baldwin said. “So I’m going to continue to press for that bill.”

But Sen. Gary Peters, D-Mich., the chair of the Senate Democrats’ campaign arm, said the finer details of how the party would codify Roe v. Wade in legislation are still up in the air.

“I wouldn’t be surprised to see that there could be some changes” from the Women’s Health Protection Act, Peters said. “But, generally, codifying the general rule of what happened under Roe v. Wade is something that we would want to do — and make sure that women’s reproductive freedoms are upheld in this country.”

The debate among Democrats has a long history. Anti-abortion lawmakers are all but extinct in the party as it becomes less rural, more metropolitan and more socially liberal. But there remain some significant disagreements between the moderate wing of the party and reproductive rights advocates about the extent to which the government should have any role in abortion.

Republicans, who have explored alternate messaging like “pro-baby” instead of “pro-life” to describe their abortion stances, haven’t given up on turning the issue around on Democrats. Facing a larger dilemma about how to proceed in a country where they’re outnumbered on the issue, some opponents of abortion have sought to highlight the broad scope of the WHPA to argue that Democrats are the real extremists.

Some of them seized on Harris' interview. 

EV Osment, a spokesperson for Susan B. Anthony Pro-Life America, said in a statement that Harris “refused to list a single limit she’d support on abortion” and pointed out that she didn't define what she means by legislatively codifying Roe v. Wade. “Democrats are pushing federal legislation through the Women’s Health Protection Act (WHPA), which goes much further than Roe,” Osment said. “It will strip all pro-life states of their existing pro-life protections forcing an entitlement of no-limits abortion through all trimesters.”

A senior Biden administration official pushed back on the criticism, saying, “Republicans are interested in trying to change the conversation because they’re losing this conversation.”

“What they’re doing is an effort to distract from their extreme agenda and ultimate goal of enacting a national abortion ban,” the official added.

But even some Democrats were perplexed by Harris’ handling of the questions on abortion limits, particularly given her central role in the White House's abortion messaging. “It was odd,” the reproductive rights advocate said. “That is a question she should’ve prepared for.”

Harris has hosted dozens of meetings and events since the Supreme Court’s decision overturning Roe v. Wade, and she’ll soon kick off a college tour this fall where abortion access will be a main issue, an administration official said.