In the hours after a leaked Supreme Court document signaled the court was poised to overturn Roe v. Wade in the coming weeks, President Biden vowed to fight to protect access to abortion.
But in marathon meetings and phone calls among White House officials, government lawyers, outside advisers and federal agency officials, a sobering reality settled in: There’s little the White House can do that will fundamentally alter a post-Roe landscape. While officials have spent months planning for the possibility the court would overturn the landmark ruling, the leaked document caught the White House off guard. Officials are discussing whether funding, whether through Medicaid or another mechanism, could be made available to women to travel to other states for an abortion, according to outside advisers who spoke on the condition of anonymity to describe internal discussions, but many doubt whether that is feasible.
Congress can guarantee abortion access nationwide by making the protections under Roe v. Wade law, but there is widespread recognition inside the White House that this path has been foreclosed for now. Democrats hold a razor-thin Senate majority, and key Democrats have made it clear they will not support eliminating the filibuster, which requires 60 votes for the passage of most legislation, to protect Roe v. Wade.
“A lot of what the Biden administration could do would be window dressing, in that ultimately we’re going to have a system of conflicting access to reproductive health and rights depending upon the state you live in,” said Lawrence Gostin, the director of the O’Neill Institute for National and Global Health Law at Georgetown Law, who has been advising the White House on its options. “And there’s very little that Biden can do about that.”
Biden officials spent much of Tuesday panicked as they realized how few tools they had at their disposal, according to one outside adviser briefed on several meetings. Now officials are fervently debating a number of executive and regulatory actions the administration could take to make it easier for women in red states — particularly poor women — to access abortion care, according to three outside advisers.
But officials privately recognize that nearly any administrative action would face legal challenges from Republican attorneys general, and that many of those challenges could succeed. Even if they don’t, they could tie up the action for months.
“Every single thing they do is going to get legally challenged, and every [government] lawyer agrees,” said one outside adviser, speaking on the condition of anonymity to disclose private conversations. “A bunch of attorneys general will mobilize, and [the administration] will lose.” That is in large part because a court that overturns Roe is unlikely to look kindly on actions designed to circumvent that ruling.
Biden has pressed Congress to codify Roe v. Wade, the only mechanism outside the Supreme Court — or a constitutional amendment, which seems even less likely — that could protect abortion rights. But Democrats concede that effort seems out of reach. Democrats would have to vote to eliminate the filibuster to guarantee a right to abortion with a simple majority, but Sen. Joe Manchin III (D-W.Va.) and Sen. Kyrsten Sinema (D-Ariz.) have said they will not back such a rule change.
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Inside the White House, some officials, including Biden, also worry that if Democrats suspend or kill the filibuster to codify Roe, Republicans would simply reverse that next time they take control of Congress and the presidency, outlawing abortion nationwide.
The agency with the most power to increase access to abortion is the Department of Health and Human Services, which oversees the Medicaid program. One option under discussion is whether the administration could provide funding through Medicaid or another mechanism that would make money available to women to travel to other states for an abortion, the outside advisers said.
Some Republican-led states have said they will make it illegal for women to travel elsewhere to get abortions, but it’s unclear whether such a policy would be upheld by the courts.
The administration has also said the Justice Department will challenge various state laws and rules that aim to restrict or ban abortion. But if the court throws out Roe as anticipated, such cases could face an uphill battle.
The administration did take a big step last December, when the Food and Drug Administration decided to allow abortion pills to be prescribed via telehealth appointments and then mailed to the recipient. Previously, a woman had to pick up the medication at hospitals, clinics or doctors’ offices. And the administration had recently created $6.6 million in “Dire Need” grants, which provide funding to expand access to emergency contraception and family-planning services.
The effort to overturn Roe thrusts Biden into a central, and at times uncomfortable, role as a champion of protecting abortion access. A Catholic, Biden initially opposed Roe v. Wade, saying the court went too far in its decision, and his views on the issue evolved slowly throughout his political career.
During the 2020 presidential primary, he found himself at odds with Democratic voters for his support of the Hyde Amendment, which prohibits federal funds for abortion, and he withdrew that support after fierce backlash from Democratic activists.
Abortion has always been complicated for Biden. Now he finds himself leading the fight.
As president, Biden did not use the word “abortion” until he put out a statement Tuesday morning after the draft opinion leaked late Monday. In that statement, Biden made it clear he believed the right response was to elect more lawmakers who support abortion rights, rather than trying to work around the ruling through executive actions.
“If the 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. “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.”
Still, Biden has directed various offices — including the Gender Policy Council, the White House Counsel’s Office and the Domestic Policy Council — to work on plans for blunting the impact of the Court’s likely decision. The White House declined to make any officials in those offices available for an interview to discuss their efforts to protect abortion rights should the Supreme Court overturn Roe v. Wade.
Biden advisers also see abortion rights as a potentially galvanizing issue for voters ahead of November’s midterm elections. In what is shaping up to be a difficult year for Democrats on the ballot, party leaders and activists hope that if the Supreme Court overturns Roe, Democratic voters will express their anger at the ballot box.
The unprecedented leak of Supreme Court Justice Samuel Alito’s draft opinion in a key case striking down Roe v. Wade (1973) has sparked a heated debate, perhaps drawing new attention to the late Justice Ruth Bader Ginsburg’s opinion on the key abortion precedent.
Although Ginsburg firmly advocated for women’s access to abortion as a constitutional right, she criticized the way in which Roe v. Wade established that right – and her reasoning for this nuanced position may shed light on the current debate.
Chief Justice John Roberts confirmed that Alito’s draft opinion in the case Dobbs v. Jackson Women’s Health Organization was genuine – although the draft dates back to February, and it does not represent the current or final opinion of the court. In the draft, Alito strikes down Roe v. Wade, which struck down state laws across the country, and allows states to again make their own laws on abortion.