TDD #26: What Does It Mean to "Codify" Roe? (Part 1)
What is Codification?
Welcome to another edition of The Dobbs Digest, a newsletter of Confessions of a Truthaholic.
Abortion may be the most most divisive and intractable topic in contemporary American politics. And the inflammatory rhetoric, which reached boiling point after Roe v. Wade was overturned in the summer of 2022, isn’t simmering down anytime soon. But most of what I read and hear is sky high on emotion but low on facts, so bear that in mind as you scroll.
My sole purpose with this newsletter is to question the assumptions of the media narratives shaping abortion discourse and to unpack the actual issues raised in the courts to get us to a shared understanding of the reality on the ground.
If you’re new to this newsletter, please read our welcome post here so you’re in the know. So glad to have you here.
Codifying Roe
Welcome to a new series on The Dobbs Digest: What Does it Mean to “Codify” Roe? Since Roe v. Wade was decided in January 1973, pro-choice politicians have been promising to “codify Roe,” but it hasn’t happened. Will it ever?
Joining a long line of predecessors, Kamala Harris is also promising to codify Roe if she’s elected President. To be specific, she usually says she intends to “restore the protections of Roe v. Wade.”
But does anyone have any clue what ”codifying Roe” actually looks like?
I mean, it’s a great talking point and sounds noble, but most of us would be hard-pressed to explain what this means, me included until a couple of years ago. And therein lies the problem. Ignorance, my friends, is not bliss when we’re dealing with real people, real lives, and an issue with life and death consequences.
Hence, this series …
Some preliminaries …
It’s quite easy to get caught up in or distracted by the drama of the abortion wars, but to understand its legal contours, we must know what the law says and we must discern the Constitutional justification for them.
Because America’s public education system doesn’t prioritize or promote civic or legal literacy, tackling the legal side of any issue, and particularly divisive social issues, is extremely difficult. If I’m being honest, even those of us with special training find it challenging to navigate our outrageously complex legal landscape on the best of days.
But, we press on, because it matters. And mattering is what makes them worth the effort. Right?
In this series of posts, I’m going to isolate the legal components of abortion from their political context so we can consider them at face value. I know it’s very hard to be neutral on such a topic, but history, including legal history, is what it is and we’ve no authority to recast it in a more favorable, or less favorable, light. Like it or not, history is irrevocable, so we might as well deal with it on its own terms. We’re not characters in the story, so we don’t need to get hung up on what someone did or didn’t do, we just need to learn what happened.
It’s also wise to remember that “facts are stubborn things” (quoting John Adams). And, in every situation, there are good facts and bad facts, but we must know all the facts if we’re serious about understanding an issue beyond the surface.
Think of it this way … we can’t change what we don’t know, so school’s never out for the pro!
Let’s go to school, together …
What is Codification?
Socrates tells us that the beginning of wisdom is the definition of terms, so, let’s heed his advice and start by defining “codification.”
Here’s the official definition from the Legal Information Institute at Cornell Law School …
Codification is the process of compiling rules and laws into an orderly, formal code. The code is a systematic compilation of existing laws to be included in a legislative statute. It is a compilation of all the laws in force, including the enacted laws and case law, covering a complete legal system or a specific area. A code can make the formulation of legal principles and rules more concise, clear, and thorough, so that people can understand the rules more quickly and comprehensively.
Many states publish official codes of all existing laws, which are compiled by code commissions and enacted by the legislature. The United States Code (USC) is a compilation of federal law, and the Uniform Commercial Code (UCC) is a collection of commercial law.
A code usually covers the complete rules of a particular area, such as civil or criminal law. The law itself is formulated and published in the form of a code.
In other words, codification is the process of taking all of the existing laws on the books, binding judicial decisions, and/or rules and regulations on a particular subject and compiling them into a single written legal code, also called a standing body of law. The codification process also reveals outdated, overlapping, and conflicting statutes, so it’s a bit like “legal spring cleaning.” Instead of going through dresser drawers and reorganizing them according to size or color and maybe getting rid of duplicates, it’s going through all the various written laws passed and/or adopted over time (positive law) as well as judge-made laws (common law) and putting them in one folder, with a comprehensive summary and detailed table of contents.
Note that Roe v. Wade was judge-made law, not positive law, hence the rallying cry to codify.
Sometimes, the text of the compiled legal code, i.e. the summary and TOC, will itself be adopted by Congress (or a State legislature), and become law itself. Either way, with everything in one place, it’s like “one-stop shopping” at the law library.
In the United States, our general and permanent laws are organized in the United States Code, which is divided into “titles” based on subject matter. Currently, the Code has 54 titles.
SIDEBAR » General laws apply to everyone equally, with exceptions for special classes of people, such as the disabled (laws addressing accommodation) and those with varying levels of income (laws establishing tax rates), etc.
Permanent laws, also called perpetual laws, are those without an expiration date (laws that require Congress to pass an appropriations bill every year). They’ll stay in effect unless and until they’re changed by another law passed by Congress.
By way of example, here’s a random selection from the 54 titles:
Title 2 - The Congress
Title 3* - The President
Title 4* - Flag and Seal, Seat of Government, and the States
Title 6 - Domestic Security
Title 8 - Aliens and Nationality
Title 11* - Bankruptcy
Title 15 - Commerce and Trade
Title 17 - Copyrights
Title 18* - Crimes and Criminal Procedures
Title 21 - Food and Drugs
Title 24 - Hospitals and Asylums
Title 35* - Patents
Title 42 - The Public Health and Welfare
Title 52 - Voting and Elections
Some of these titles include just a handful of laws, while others are quite voluminous. For example, Title 15 has 15 “sub-titles” or “chapters;” Title 42 has 164. And, some of the titles have themselves been enacted into positive law, while others haven’t. Those marked with an * are now positive law.
As a practical matter, if a Title has been enacted into positive law, reading from the Code itself is functionally equivalent to pulling up the language in the original statutes. The code itself becomes the "primary source” so to speak. Lawyers can cite directly to the Code in legal briefs instead of referencing each of the specific statutes or case law restated by the code. It’s legal taxonomy.
Each of the 50 states have their own legal codes as well, which makes it much easier to find what’s officially on the books. Similarly, some of the “titles” in state codes are enacted as positive law, and some aren’t, so it’s important to pay attention while researching.
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Let’s leave it here for now so we don’t get too far ahead of ourselves. We just introduced a lot of new terms and concepts, i.e. positive law and common law, and I want to be sure we stay on the same page. Worry not, I’ll explain these in more detail as we move forward in the series.
Next time, we’ll explore Roe v. Wade itself to see what it said, what it didn’t say, its Constitutional justification, and what that may mean in terms of an effort to “codify” it.
Before I close, here’s a bit of legal context to keep in mind as we proceed.
When Dobbs v. Jackson overturned Roe v. Wade (1973) in June 2022, it also overturned Planned Parenthood v. Casey (1992), which significantly altered the famous “trimester framework” outlined in Roe and opened the door for increased regulation of abortion throughout the country. Casey, the case that was supposed to overturn Roe, spurred on another 30 years of nasty legal fights, resulting in wins on both sides. Suffice it to say, by the time the Supreme Court heard Dobbs, Roe was but a shadow of its former self. So, when politicians speak of “codifying Roe,” absent specifics it’s not much more than a talking point. But, Kamala Harris has given us some clues into her thinking so we can follow their lead and see where they take us.
Back shortly with Part 2 of “What Does It Mean to “Codify” Roe?
As always, I write in service to the truth, the whole truth, and nothing but the truth.
Thank you for reading and supporting my work. And, don’t hesitate to ask me questions or offer clarifying information if I’ve said something in a weird way or misstate it altogether.
xo,
Kelley
October 9, 2024