Fact Check
In the summer of 2022, U.S. President Joe Biden faced allegations of hypocrisy and "flip-flopping" after he strongly condemned the U.S. Supreme Court's decision to overturn Roe v. Wade and remove federal constitutional protections for abortion access.
Speaking on June 24, Biden described Roe as "the correct decision as a matter of constitutional law, an application of the fundamental right to privacy and liberty in matters of family and personal autonomy," and he called the decision to overturn it a "tragic error" and the "realization of an extreme ideology."
However, many observers — both to the left and right of Biden on the ideological spectrum — contrasted such remarks, in 2022, with what they presented as Biden's very different stance on the abortion rights landmark, four decades ago.
U.S. Sen. Marsha Blackburn, R-Tenn., for example, wrote on Twitter:
In 1982, Joe Biden proposed a constitutional amendment that would overturn Roe v. Wade and give the states the ability to regulate abortion. But today, he condemned the Dobbs decision. Unlike pro-life advocates, Biden has no backbone. He is ruled by the radical left.
On June 24, one Facebook user published a viral post which contained a screenshot of an article by the London Independent, with the headline "Biden voted to overturn Roe v Wade in 1982..." and the caption "Wonder how those protesting the Supreme Court decision feel about this. Chances are they are the same people that voted for Biden."
In recent years, the same core claim — that Biden once voted in favor of effectively overturning Roe and returning abortion policy to the states and the U.S. Congress — has featured in news articles by the The New York Times, Fox News, and the New York Post.
That claim is accurate, although Biden did vote against an identical proposal just one year later. Our rating is "True."
What Exactly Was the 1982 Vote About?
The vote in question took place on March 10, 1982. Biden, then a U.S. senator for Delaware and member of the Senate Judiciary Committee, was considering a proposal put forward by Sen. Orrin Hatch, R-Utah, for an amendment to the U.S. Constitution.
The proposal, Senate Joint Resolution 110, contained the following text:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two-thirds of each house concurring therein), That the following article is proposed as an amendment to the Constitution of the United States which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:
"ARTICLE —
"A right to abortion is not secured by this Constitution. The Congress and the several States shall have concurrent power to restrict and prohibit abortion: Provided, That a provision of a law of a State which is more restrictive than a conflicting provision of a law of Congress shall govern."
The key finding of Roe was that the U.S. constitution — in particular the "due process" clause of the 14th amendment — recognized a right to privacy, and that that included a woman's right to an abortion.
Hatch's proposed amendment would have explicitly inserted into the Constitution the assertion that "a right to abortion is not secured by this Constitution." Clearly, that would have been completely incompatible with Roe, and therefore would have effectively — and emphatically — overturned Roe.
The amendment would also have returned to Congress and the states the ability to govern abortion access. This was precisely the effect of the Supreme Court's ruling, 40 years later, in Dobbs — the decision that ultimately overruled Roe.
Hatch's proposal went even further, though, stipulating that, while Congress could enact legislation governing abortion access on a national level, if an individual state's abortion law was stricter than the federal law, the state law would take precedence.
The amendment never made it as far as a vote in the full Senate or House, but on March 10, 1982, the Senate Judiciary Committee did vote to advance it out of committee for the consideration of the full Senate.
As a later committee report described it, the committee voted 10-7 to "favorably report out" the proposal. This is an important distinction. Judiciary committee members can vote to advance a measure to the full Senate "without recommendation," meaning that, whether or not they personally support the proposal, they believe it should be considered by the full Senate. Biden's March 1982 vote went further, and he joined the committee's majority in explicitly supporting the proposal itself. The votes were as follows:
For:
Hatch, R-Utah; Laxalt, R-Nev.; Dole, R-Kan.; Simpson, R-Wyo.; East, R-N.C.; Grassley, R-Iowa; Denton, R-Ala.; Biden, D-Del.; DeConcini, D-Ariz.; Thurmond, R-S.C.
Against:
Mathias, R-Md.; Specter, R-Penn.; Kennedy, D-Mass.; Byrd, D-W.Va.; Metzenbaum, D-Ohio; Leahy, D-Vt.; Baucus, D-Mont.
At the time, Biden said his vote was an exceptionally difficult one, and described abortion as "the single most controversial issue in the United States of America." Snopes asked the White House for a fuller explanation of the reasoning behind Biden's March 1982 vote, but we did not receive a response in time for publication.
Prior to that vote, the Delaware senator had expressed clear opposition to Roe. For example, in a 1974 interview he declared:
"I don’t like the Supreme Court decision on abortion. I think it went too far. I don’t think that a woman has the sole right to say what should happen to her body."
However, when Hatch submitted a similar proposed constitutional amendment in 1983, Biden voted against it, both in the judiciary committee and in the full Senate chamber.
From that point, his public stance on abortion rights in general, and Roe in particular, evolved from one of hostility, to neutrality, and as of 2022, firm support.