Bloomberg Law
June 25, 2022, 12:11 AM

Biden, Democrats Lack Options to Do Much on Abortion Access (1)

Jordan Fabian
Jordan Fabian
Bloomberg News

President Joe Biden and congressional Democrats are under pressure to enact new policies to ensure US women retain access to abortions, but their options are sorely limited and risk generating new court challenges.

Biden said Friday that his administration will fight to make sure women can travel from states where abortion is outlawed to obtain the procedure in states where it’s legal. He said he also ordered the Health and Human Services Department to ensure abortion drugs are available “to the fullest extent possible.”

Both moves may wind up in court, as some Republican lawmakers have vowed to try to prevent women from traveling out-of-state for abortions and stop abortion drugs from being prescribed or sold within their states.

But despite controlling the White House and both chambers of Congress, there’s little more Democrats can do via executive action or legislation, legal experts say, after the high court wiped out the constitutional right to abortion in a historic ruling. Republicans in the Senate can easily filibuster any bill to replace the rights once secured by Roe, while Biden lacks the power to unilaterally ensure abortion is available nationwide.

And Democrats’ grip on Congress is tenuous, resting on Vice President Kamala Harris”s tie-breaking vote in the Senate. Midterm elections in November are poised to flip control of one or both chambers to the GOP.

Biden acknowledged the limits of his authority in remarks at the White House after the ruling on Friday.

“The only way we can secure a woman’s right to choose, the balance that exists, is for Congress to restore the protections of Roe v. Wade as federal law,” Biden said. “No executive actions from the president can do that.”

In a further admission that the current Congress won’t be able to make Roe law, he added: “Voters need to make their voices heard this fall.”

The White House has held daily calls on the subject since the ruling leaked, plotting out its options, and met regularly with groups like Planned Parenthood and Emily’s List, an official familiar with the process said, speaking on condition of anonymity. The White House counsel’s office was closely involved, studying what legal recourse they have, but the official reiterated what Biden said: no executive actions can restore Roe or come close to it. It’s not yet clear if the administration is considering minor ones.

Biden has directed HHS to make sure that mifepristone, an abortion drug, can be prescribed by telehealth and through pharmacies, and to make sure insurers don’t stop covering contraceptives, including emergency contraceptives, the official said. The Department of Justice will also support the right to travel, and look to intervene in cases on behalf of people facing legal action for traveling to receive an abortion, the official said.

Biden administration spokespeople declined to answer questions about the details of their response to the Roe decision, and the White House canceled a scheduled briefing by Press Secretary Karine Jean-Pierre on Friday without explanation.

Bans on the Way

Senate Majority Leader Chuck Schumer made no mention of a legislative response in a statement after the court’s ruling, focusing instead on the need to elect more abortion rights-supporting Democrats in the November midterms.

What Happens to Abortion If Roe v. Wade Is Overturned: QuickTake

More than 20 states already have abortion bans or restrictions on the books, ready to take effect following the court’s decision.

The Guttmacher Institute, which researches sexual and reproductive health and rights globally, predicted that 26 states were “certain or likely” to ban abortion after Roe was overturned.

With their hands largely tied on policy, the White House and its Democratic allies have been readying a political offensive against Republicans, using the Roe decision to paint them as extreme in the hopes of staving off a GOP takeover in November. Biden has predicted that voters will revolt against Republicans.

Polls have consistently shown that a majority of Americans support a general right to abortion and even more opposed the Supreme Court overturning Roe. But Republicans and abortion opponents reacted to the ruling with jubilation.

Biden on Friday embraced two potential uses of executive power: helping women travel to other states to obtain abortions and asserting the Food and Drug Administration’s power to override state laws blocking access to abortion pills.

“Women must remain free to travel safely to another state to seek care they need,” Biden said, calling it a “bedrock right.”

“Any state or local official, high or low, that tries to interfere with a woman’s exercising her basic right to travel, I will do everything in my power to fight that deeply un-American attack,” he added, without elaborating.

Kavanaugh’s Support

He would appear to have the Supreme Court’s backing at least for that narrow position. Justice Brett Kavanaugh, one of five justices who voted to overturn Roe, said in a concurring opinion that states can’t bar their residents from traveling to seek abortions elsewhere. He also said states can’t impose liability or punishment for abortions that took place before the court’s ruling on Friday.

Those questions, Kavanaugh wrote, “are not especially difficult as a constitutional matter.” His vote is key, as without it, the court would have left Roe intact.

Read More: Biden Taps Democrats’ Abortion Fury as Midterm Wipeout Looms

A group of 25 Senate Democrats wrote Biden June 7 urging him to ease FDA requirements on abortion pills, which pharmacies must have a special license to distribute.

The FDA in December eliminated restrictions on postal delivery and telehealth prescriptions of medication used to end early-stage pregnancies.

The agency could ease other rules, such as certification requirements for health care providers that prescribe the drugs as well as the need for patients to sign additional forms. But the administration may need to fight a legal battle with states such as Texas and Indiana that have restricted use of the medicines and others that could move to ban them outright.

The senators also urged federal agencies to provide funding for travel and childcare for women who travel out of state to seek abortions. That would defray costs for low-income women, many of whom do not have employer-based insurance plans that cover such travel.

The costs of the procedure, child care and lost wages have been shown to deter women in areas where access to abortion is limited or nonexistent from traveling elsewhere.

The Senate Democrats also called on the administration to:

  • Crack down on states that drop family-planning services from Medicaid plans
  • Secure data from medical apps and websites that could be used to prosecute women who get abortions and
  • Explore the possibility of providing abortions at federal properties, even in states where they’re banned.

Several of those proposals, especially allowing abortion providers to operate in federal buildings, could face court challenges, according to legal experts.

Biden and his aides have all but entirely dismissed more radical responses to the Roe decision demanded by progressives, including proposals to expand the Supreme Court to more than nine justices in order to dilute the power of its current conservative majority.

Biden also hasn’t endorsed eliminating the Senate filibuster, so that just 51 votes would be required to write Roe’s protections into law, instead of 60. At least two sitting Democratic senators, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have said they oppose ending the filibuster, making the issue moot for now.

(Updates with details on White House actions in ninth paragraph.)

--With assistance from Jennifer Jacobs, Josh Wingrove, Jenny Leonard and Greg Stohr.

To contact the reporter on this story:
Jordan Fabian in Washington at

To contact the editors responsible for this story:
Alex Wayne at

Kathleen Hunter

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