“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,” Biden said in a statement Tuesday.
That’s an unlikely outcome.
Writing the protections of the Roe v. Wade decision into U.S. statute would be one of the most difficult legislative battles of the modern era. Under current rules, abortion rights-supporting Democrats and the few Republicans who ally with them would need to hold at least 60 seats in the Senate to pass the bill over a filibuster.
At the moment, Democrats lack the votes to pass Roe legislation even by a simple majority. A House-passed bill to codify Roe was blocked in February in the Senate on a 46-48 vote. West Virginia Senator
Additionally, some key supporters of abortion rights -- Democrat
Senate Majority Leader
Politico reported Monday night that it had obtained a draft majority opinion of the justices that would strike down the 1973 ruling, touching off demonstrations outside the Supreme Court. The court confirmed in a statement Tuesday that the draft opinion is authentic but not final.
“It concerns me a great deal that we’re going to, after 50 years, decide that a woman does not have the right to choose,” Biden told reporters traveling with him to a weapons plant in Alabama.
He also questioned the legal reasoning behind the draft decision, written by Justice
“If the rationale of the decision as released were to be sustained, a whole range of rights are in question,” Biden said. “If this decision holds, it’s really quite a radical decision.”
White House Press Secretary
“Republican legislators in states across the country are weaponizing the use of the law against women,” Harris said, adding that now was the time to “fight for women and for our country with everything we have.”
Harris is scheduled to address the abortion rights group Emily’s List Tuesday evening, in what has suddenly become one of the highest-profile speeches of her political career.
Striking down Roe
Congress’s top two Democrats -- Schumer and House Speaker
Schumer on Tuesday also accused the three justices appointed by former President
Republicans focused on the leak of the draft ruling itself, calling for an investigation into the unprecedented disclosure. Senate Republican leader
The court’s chief justice,
Psaki said that the disclosure “raises eyebrows for many in the country, including those in the White House, but what our focus is on right now, beyond the leak, is how we’re going to protect a woman’s right to make choices about her health care with her doctor.”
She said that the right to abortion “is supported by the vast majority of the American public.”
Just 28% of Americans support overturning Roe, according to a Washington Post-ABC News poll conducted last week, while 54% say the decision should be upheld -- a finding consistent with other public opinion surveys going back decades.
A decision to overturn Roe could reverberate through the 2024 presidential campaign and magnify attention on gubernatorial and legislative races across the country, as it would give states more power to decide the legality of abortions.
The Democratic National Committee said reproductive rights will be on the ballot in November “and this midterm election is more important now than ever before.”
“Voters will make their voices heard, we will fight back with everything we have, and Republicans will have to answer for their party’s relentless attacks on Americans’ rights,” the committee said in a statement.
In the absence of congressional action, Biden has limited avenues to exercise executive authority to protect abortion access.
His administration could challenge state laws that limit patients’ ability to receive abortion pills by mail, after the Food and Drug Administration said in December that doctors don’t have to prescribe the medication in person, said David Cohen, who teaches about gender and constitutional law at Drexel University.
At least 19 states have laws requiring a clinician to be physically present when abortion-inducing drugs are administered, according to the Guttmacher Institute, a research group that supports abortion access.
Another potential workaround: lease federal property to abortion clinics, allowing them to operate outside some state laws. But it’s unclear if that approach would survive judicial review, said Seema Mohapatra, a health law professor at Southern Methodist University,
(Updates with potential Biden executive actions, in final three paragraphs)
--With assistance from
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Kathleen Hunter, John Harney
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