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Joe Biden, the Unreliable Pro-Choice Advocate

Joe Biden's political career is one of constantly waffling on women's right to choose. He is an unreliable ally in the fight for abortion rights.

Biden speaks at John Roberts's confirmation hearings in 2005. Win McNamee / Getty Images

In the ongoing “battle for the soul of the Democratic Party,” few issues have been bigger flashpoints than abortion rights. Both Bernie Sanders and Tom Perez have both faced criticism for suggesting the party should in certain circumstances back candidates that didn’t have stellar records on abortion (even though this didn’t actually describe Keith Mello, the candidate Sanders was backing), while the inconsistencies of some of those who have criticized that position have aroused doubt about their motives. The president of NARAL Pro-Choice excoriated Sanders for his support of Mello, for instance, but enthusiastically backed Clinton’s choice of the Hyde Amendment-supporting Tim Kaine as VP.

Wading into this debate will be Joe Biden, who has what can generously be described as a mixed record on abortion rights. While he has, like many pro-life Democrats, “evolved” on the issue over time, what sets Biden apart is that even this evolution has carried him only to what he himself describes as a moderate position on the issue.

For the first few decades of his career, Biden waffled between restricting abortion rights and defending them, though generally leaning toward the former. He started his Senate career as a self-described social conservative who disliked Roe v. Wade, griping that it “went too far” and that he didn’t think “that a woman has the sole right to say what should happen to her body.”

For the next eight years, his actions in Congress toed this line.

Biden defeated a 1977 amendment that would have removed all restrictions on federal funding of abortions, for instance, voting instead for a rider that actually removed the already existing exception that allowed federal funding of abortions in cases of incest and rape. The Philadelphia Inquirer called it “the toughest ever anti-abortion measure.”

In 1981, Biden successfully proposed what became known as the “Biden amendment” to the Foreign Assistance Act, barring US aid from being used for biomedical research related to abortions. Biden has had a lasting legacy in this respect: to this day, the amendment has remained a part of the laws covering foreign assistance.

The following year, Jesse Helms attached an amendment to a must-pass bill to raise the debt limit that permanently barred federal funding for both abortions and abortion research and training. Biden voted in favor of it multiple times. Even more extreme was that year’s so-called Hatch Amendment, which in practice would have overturned Roe v. Wade by letting either states or Congress decide the question of abortion — whichever was “more restrictive.” Though it was unsuccessful, Biden voted on the Senate Judiciary Committee to move the bill forward on a close 10-7 vote, one of only two Democrats to do so. A year later, however, he changed his mind and voted against it.

Biden’s 1983 about-face on the Hatch Amendment, one of the most radical attempts to curb abortion rights then and since, didn’t mean he suddenly became a pro-choice champion. According to a handy report produced by the National Right to Life Committee (NRCL), in 1983, Biden voted five times to bar the Federal Employees Health Benefits program from funding abortions for federal employees, a measure that ultimately became law.

He also voted for the Hyde Amendment — a landmark victory for abortion rights opponents that finally barred federal funding of abortions — as well as for extending the Hyde Amendment to apply to the federal Bureau of Prisons. He supported an amendment that praised Reagan’s “Mexico City policy,” which withheld federal funds from foreign NGOs performing abortions, including the International Planned Parenthood Foundation. Under that policy, also known as the “Global Gag Rule,” even counseling women on abortions would get an organization blacklisted.

It’s no wonder, then, that a Planned Parenthood official complained to the Wall Street Journal in 1986 that Biden “usually votes against us,” adding that it was “difficult to know whether this issue is purely personal, purely political, or a combination of both with him.”

Biden, for his part, complained that Democrats had let Republicans become the party of family issues and grumbled that a Carter administration conference on diverse family types should have been denounced as “malarkey.” “The Democratic Party used to be made up of people like my grandfather Finnegan,” he said; “but lately, there’s been an intellectual snobbism in the party.”

Biden did somewhat temper his opposition to abortion after this, voting in favor of abortion rights several times over the rest of the 1980s. In 1988, however, he still voted against adding a rape and incest exception to the Hyde Amendment.

The Uncertain Ally

It was also around this time that the nominations of Robert Bork and Clarence Thomas to the Supreme Court became flash points in the battle over abortion rights — and placed Biden, then the chairman of the Senate’s Judiciary Committee, center stage.

Biden had earlier voted to put both Bork and Antonin Scalia on the federal bench, calling them “first-rate minds with first-rate capabilities,” who had “the earmarks of excellence.” In fact, in 1986 the Philadelphia Inquirer asked Biden point-blank what he would do if a liberal justice were to vacate the Supreme Court and Reagan put forward a nominee with “extremely conservative views.”

Biden answered: “Say the administration sends up Bork, and after our investigation he looks a lot like another Scalia,” replied Biden. “I’d have to vote for him, and if the [liberal] groups tear me apart, that’s the medicine I’ll have to take.” “I’m not Teddy Kennedy,” he added.

Indeed, as legal analyst Jeffrey Rosen — one of Biden’s interns at the time — would write decades later, Biden had “built a national reputation by attacking the excesses of liberal interest groups.” But by the time Reagan did nominate Bork a year later, Biden was angling for a presidential run; he reversed himself under pressure from those same groups.

As for Biden’s role in the Clarence Thomas confirmation, history has not been kind to him on the matter — nor were many observers at the time.

Biden received heavy criticism from women’s groups, then and since, for not doing enough to investigate Anita Hill’s accusations of sexual harassment against Thomas. Biden’s excuse was that Hill wanted confidentiality, which caused delays and hamstrung what the committee could do.

But even after Hill gave permission for her charges be presented to committee members and was assured they would be, it didn’t happen. Biden then decided not to delay the vote on Thomas despite the fact that the FBI was investigating Hill’s charges, citing the fact that no one on the all-male committee was seeking more information. When several female lawmakers raised their concerns with Biden that the process was being rushed, he explained that he had already, within the sacred space of the Senate gym, given his word to Thomas’s main Republican advocate that it would be a quick hearing.

More damning, Biden never followed up on evidence that would have corroborated Hill’s charges. Several women who could have backed up the accusations, including one who wrote a letter to the committee and another who wrote Biden a personal note about the matter, were never called to testify in the public hearings. Another was interviewed by Biden’s special counsel, but the transcript was simply entered into the record after the hearing was over, a day before Thomas was confirmed.

As Jeffrey Rosen wrote, “by insisting that no further witnesses be called, Mr. Biden ensured [Thomas’] confirmation.”

Yet by 2007, Biden was claiming that he had “led the fight against” Bork and Thomas, citing this as proof that he “strongly support[s] Roe v. Wade.”

In fact, in 1992 Biden gave a speech outlining how to approach Supreme Court nominees, urging “Democrats and moderate Republicans” not to use Roe v. Wade as a “divining rod in reverse, making a nominee’s views or refusal to state his views on this question the overriding concern in the confirmation process.” When then-governor Bill Clinton affirmed in July 1992 that he would only nominate a Supreme Court justice who supported Roe v. Wade, Biden’s words were used to make Clinton seem like a radical resorting to a “litmus test.”

“Not even Joe Biden agrees with Governor Clinton,” wrote the Baltimore Sun.

It was a reflection of Biden’s ambivalence toward the issue throughout that decade.

Late-Term Evolution

Biden continued to get middling scores from abortion rights advocacy groups like NARAL and Planned Parenthood throughout the 1990s. In 2012, the National Right to Life Committee (NRLC) put together a list of some of his key votes, using it to argue that Obama, by contrast, was “far outside the mainstream of public opinion in America” on abortion.

According to the NRLC, Biden spent the 1990s resisting giving his support to the Freedom of Choice Act, which would have banned most state restrictions of abortion, on the basis that it would go too far in curtailing state “regulation” of abortion. Even as late as the late 2000s, Biden pointedly declined to co-sponsor the revived bill when it was championed by Obama.

Through the late 1990s, Biden would combine good votes on the issue — voting against the ban on abortions at medical military facilities, and against criminalizing the transport of a minor across state lines for an abortion — with some bad stances, such as ensuring aid for children’s health insurance didn’t cover abortions and keeping abortion coverage out of federal employees’ health insurance plans. But by by the 2000s, Biden’s evolution was more or less complete and he began regularly getting good scores from reproductive rights groups.

There was one notable stain on his more recent record, however. At the close of 1995, Biden voted multiple times in favor of a ban on so-called “partial-birth” abortions, an extremely rare type of pregnancy termination whose label doesn’t accurately describe the procedure. Biden even voted to override Clinton’s veto of the bill, one of eight senate Democrats to do so. The only reason it failed was opposition from eight moderate Republicans.

Biden would continue voting for the “partial-birth” abortion ban over the years, finally succeeding in getting it passed and signed by George W. Bush in 2003. Abortion opponents saw the law as a “crack in the dike” that would eventually overturn Roe v. Wade.

When the Supreme Court upheld the bill in 2007, Biden was the only candidate not to put out a statement against it. In fact, he staunchly defended his vote.

In his autobiography released that year, Biden wrote that he had “stuck to my middle-of-the-road position on abortion for more than thirty years,” and that he continued to vote against “partial-birth” abortion and federal funding for abortions. Nothing he’s said since then suggests he’s changed these views.