Biden ‘not prepared’ to leave right to privacy determination to ‘whims’ of ‘local areas’

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Biden reacts to Roe v. Wade draft decision: 'Whole range of rights are in question'

The president reacted to the leak, warning overturning Roe v. Wade would be a 'fundamental shift' as abortion policy would be up to the states.

President Biden on Tuesday declared he is "not prepared" to leave the issue of privacy to "the whims" of the public in "local areas," warning that a draft Supreme Court opinion overturning Roe v. Wade was a "radical decision" that would jeopardize "a whole range of rights."

If Roe were overturned, decisions about the legal status of abortion would be left the individual states.

The draft opinion was written by Justice Samuel Alito and was obtained and made public by Politico in an unprecedented and stunning leak from the high court. 

The draft opinion would abolish the foundation of Roe, which argues that abortion must be legal in all states because of a right to privacy that can be found in the Constitution. Many conservative jurists say such a general right does not exist.

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"Look, the idea, it concerns me, that we’re gonna, after 50 years, decide a woman does not have the right to choose, number one," Biden said Tuesday. "But, equally as profound is the rationale, and it remained the every other decision in the notion of privacy is brought into question."

He added: "If it were to be sustained, a whole range of rights are in question, and it would be a fundamental shift." 

Biden warned that if the Supreme Court moves to overturn Roe v. Wade, as it signaled in the leaked opinion to Politico, issues regarding right to marriage, right to contraception and more come into question.

"One of the issues this court, many members of the court, have not acknowledged is there is a right to privacy in the Constitution," Biden said.

"If this decision holds, it really is a radical decision," Biden said. "All of the decisions make in private life, who you marry, whether you can have an abortion, how you raise your child… it is a fundamental shift."

The president went on to say that "one of the reasons" why he voted against "a number of members of the Court" was because "they refuse to acknowledge that there's a 9th Amendment." 

The Ninth Amendment states that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

According to the Annenberg Classroom, the Ninth Amendment is a "constitutional safety net intended to make clear that individuals have other fundamental rights, in addition to those listed in the First through Eighth Amendments."

"They refuse to acknowledge there’s a right to privacy," the president said Tuesday. "I mean, there are so many fundamental rights that are affected by that." 

The president added: "And I'm not prepared to leave that to the whims and the -- and the -- of the public at the moment in local areas."

President Biden speaks at the memorial service for former Vice President Walter Mondale, Sunday, May 1, 2022, at the University of Minnesota in Minneapolis. (AP Photo/Jacquelyn Martin) (AP Photo/Jacquelyn Martin)

Biden said earlier Tuesday in a statement that his administration has argued in defense of Roe v. Wade before the Court, saying it is "based on ‘a long line of precedent recognizing ‘the Fourteenth Amendment’s concept of personal liberty’… against government interference with intensely personal decisions.’"

"I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned," Biden said. 

Biden later was asked by reporters about doing away with the filibuster, but said he was "not prepared to make that decision now," but said that the Supreme Court's likely judgement on Roe "goes way overboard."

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The filibuster is a threshold of 60 votes in the Senate that's necessary before a piece of legislation is given an up or down vote. If Democrats wanted to establish a new filibuster precedent, they could do so with 51 votes – all 50 senators in the Democratic caucus plus Vice President Harris breaking the tie.

When asked if the decision would have an effect on the midterms, Biden said: "I haven't thought that through yet." 

But Biden, earlier Tuesday in his statement, added that if the Supreme Court "does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose." 

"And it will fall on voters to elect pro-choice officials this November," Biden said in the statement. "At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law." 

The Supreme Court on Tuesday in a statement acknowledged that "a copy of a draft opinion in a pending case" was published Monday night. 

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"Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work," the high court said in a statement. "Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case." 

Chief Justice John Roberts also released a statement Tuesday saying that the court "will not be affected in any way" by the leak.

FILE - Visitors walk outside the Supreme Court building on Capitol Hill in Washington, Feb. 21, 2022. The Supreme Court on Wednesday, April 6, 2022, reinstated for now a Trump-era rule that had curtailed the power of states and Native American tribes to block pipelines and other energy projects that can pollute rivers, streams and other waterways. (AP Photo/Patrick Semansky, File) (AP)

"To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed," Roberts said. "The work of the Court will not be affected in any way." 

"We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court," Roberts said. 

"This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here," he continued. 

Roberts said he has "directed the Marshal of the Court to launch an investigation into the source of the leak."

Meanwhile, the president on Tuesday pointed to Texas, its law and others "restricting women's reproductive rights." 

Supreme Court Chief Justice John Roberts is seen prior to President Biden giving his State of the Union address during a joint session of Congress at the U.S. Capitol on March 1, 2022 in Washington. (Photo by Julia Nikhinson-Pool/Getty Images) (Julia Nikhinson-Pool/Getty Images)

"I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an Administration response to the continued attack on abortion and reproductive rights, under a variety of possible outcomes in the cases pending before the Supreme Court," Biden said. 

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He added: "We will be ready when any ruling is issued." 

Biden, in September, directed the Gender Policy Council and Office of the White House Counsel to launch "a whole-of-government effort to respond" to the Supreme Court's ruling that allowed Texas's "extreme" law that banned more abortions to remain in effect. 

The president tasked the councils with looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the federal government can take to "ensure that women in Texas have access to safe and legal abortions as protected" by Roe v. Wade, as well as what legal tools the administration has that could "insulate women and providers from the impact" of the Texas law.