What Biden Should Say About Abortion Rights Tonight, But Probably Won’t

President Joe Biden will give his State of the Union address tonight and, despite his campaign blaring that they’re running on abortion rights, you can bet that Biden will understate both the current abortion access crisis and the threat that a second Trump presidency would pose to people in all 50 states. Who knows, he might even take a gratuitous swipe at the procedure while he’s at it!

Abortion rights activists and anyone who supports reproductive freedom are sure to be gritting their teeth during the speech. Personally, I’ll be watching to see if Biden decides the issue is worth more than the paltry 30 seconds of airtime he gave abortion rights in his 2023 address and if he’ll be able to summon the strength to leave his longstanding distaste for abortion out of his remarks. Despite disastrous head-to-head polling against Trump, Biden can’t stop shitting on abortion rights: In just the last 30 days he’s said, “I don’t want abortion on demand, but I thought Roe v. Wade was right,” and “I’ve never been supportive of, you know, ‘It’s my body, I can do what I want with it.'” Yes, the man is allowed to have personal views but as a matter of political strategy, he’d do well to embrace the cold, hard truth that abortion is more popular than he is. For someone who ostensibly agreed to run on abortion, he really does keep undermining his biggest campaign issue.

Here’s everything he should talk about tonight, but probably won’t. Prove us wrong, Joe!

Kate Cox, the Texas woman who unsuccessfully sued to end her nonviable pregnancy, is attending the speech as First Lady Jill Biden’s guest, so he’ll no doubt, at the very least, refer to her saga. Hopefully, he’ll underscore the point that exceptions in abortion bans are unworkable bullshit.

He might mention the recent Alabama Supreme Court decision declaring frozen embryos to be people under the state’s wrongful death statute, a ruling that has effectively halted IVF in Alabama. And it would be great if he mentioned that, after that decision, Senate Republicans blocked a bill to protect IVF at the federal level—even after many of them spent the days following Alabama’s decision saying they support IVF. (Incredibly, Republicans chose Alabama Senator Katie Britt to give the GOP response to the speech, which will air live right afterward.) And in case Biden doesn’t mention that, consider this your reminder that more than 100 members of Congress have already co-sponsored an anti-IVF bill. In 2023, 125 GOP House members signed the “Life at Conception Act,” which would restrict IVF nationwide, declare embryos to be people, and ban all abortions.

It’s important to talk about the harms of anti-abortion legislation—but these two examples involve people who want to be parents. It’s sadly unlikely that Biden will get righteously angry about people being forced to continue a pregnancy against their will because they simply can’t afford another child, or they’re not ready to parent.

Two Ohio representatives, meanwhile, invited Brittany Watts as their guest, the woman criminalized for a miscarriage, though charges were eventually dropped after public outcry. (Abortion was legal in the state when this happened.) It’s a reminder of Roe‘s shortcomings: For decades, people have been criminalized for pregnancy outcomes, while others were unable to access abortions despite a legal “right” to the procedure. Something Biden will surely not get into.

Last year, Brittany Watts was charged after having a miscarriage. Instead of receiving care, her pregnancy was criminalized. I’m partnering with @RepBeatty to have Brittany and her mother Annette as our guests for the SOTU – to call out this injustice. https://t.co/EulSV6NcWQ

— Rep. Shontel Brown (@RepShontelBrown) March 5, 2024

Biden will almost certainly reiterate that he wants Congress to pass a bill to codify Roe. (Two quick follow-up questions for him, though: If you somehow did sign that into law, do you think the shameless conservative freaks on the Supreme Court would uphold it? If not, any thoughts on changing your pathetic stance on court reform?)

Legislation to codify Roe is dead in the water as long as Republicans hold the House, which brings us to what could be Biden’s grand finale! He could talk about the need to repeal an insane 19th-century zombie law that right-wing activists want Donald Trump to weaponize to ban abortions if he wins in November.

The Comstock Act of 1873 makes it a federal crime to mail, possess, or sell “obscene materials,” including items used for abortions. The law has no exceptions, not even if a pregnant person’s life is in danger, and abortion seekers themselves can face charges under it. Enforcing Comstock is part of a playbook conservative groups are preparing for Donald Trump should he return to the White House. The groups, which are part of a coalition known as Project 2025, want the next Republican president to use Comstock to ban not just medication abortion but all abortion procedures nationwide. Democrats have a responsibility to repeal Comstock to prepare for the real possibility that Trump wins—Sen. Elizabeth Warren (D-Mass.) referred to this duty in a statement to Jezebel earlier this week. Anti-abortion lawmakers swear up and down that women seeking abortions shouldn’t be criminalized, so why not force them all to vote on it?

There’s a way for Biden to talk about this larger picture, and to do it without injecting his personal stigma. After he talks about Cox’s story and the threat to IVF, he could say something like this, which I even tried to make sound like him:

It wasn’t enough for Republicans to overturn Roe v. Wade and end the right to abortion. They won’t stop until the procedure is banned in every state in the country. If Republicans take control of Congress, they will try to pass a nationwide ban. But the fact is, far-right extremists are pushing a Republican president to enforce a national ban without Congress—they want to use a law from the 19th century called the Comstock Act. It was written before women could vote, for God’s sake. They want to take away your freedoms, but the Vice President and I want to protect them. The choice couldn’t be more clear.

I concede that most people don’t know this god-awful law even exists so it might be too much for Biden to tell them about it and to say he wants to repeal it, but he could definitely tee up the repeal conversation this way.

If Biden shocks us all and does a great abortion section, I will eat crow and write another post praising him and plaster it all over the internet. But what I expect is something wholly insufficient for the moment.