TThree days later, the Supreme Court reaffirmed its decision Roe V. Wade, Republican-controlled states are moving fast to outlaw abortion, and frustration is growing among Democrats in Congress that the Biden administration isn’t acting boldly enough to meet the moment.
“I want President Biden to do absolutely everything in his power to protect access to abortion in America,” Sen. Patty Murray, Democrat of Washington, tells TIME. “Let’s really push the envelope to protect women in this country, and let’s do it now.”
Biden made the promise in a White House speech on Friday, shortly after the announcement. However, he only can do so much. “My administration will use all of its appropriate lawful powers,” he said. “But Congress must act.”
Since then, Democrats have called upon the White House for more aggressive actions to safeguard abortion rights in America post Roe. While the White House grappled with legal limits, the White House continues to wrestle with how to effectively address the issue.
Advocates see this approach as too cautious. “There are all sorts of things that this government could be doing,” says Stephanie Schmid, a former legal counsel for the Center for Reproductive Rights. “Will they be challenged in court? Absolutely. Does that mean we shouldn’t be throwing everything at the wall to show people the power of the federal government?”
After the Supreme Court revoked a Constitutional right to abortion the White House moved to allow medication abortion to be done by mail. It also protected doctors and patients against criminal liability in cases where such a procedure is illegal. Within hours of the ruling, the Department of Justice said that states couldn’t ban the abortion pill Mifepristone. Experts argue that the statement highlights the fact that state laws cannot be overridden by federal regulations. The Food and Drug Administration had approved Mifepristone use within 10 weeks.
Many Democrats say that those actions should have been followed by more efforts. Weeks before the ruling, Murray, along with Sen. Elizabeth Warren, Democrat of Massachusetts, organized a letter calling on the president to issue an executive order that would direct the federal government to “develop a national plan” to defend women’s reproductive freedom. Twenty five Senators — half the Democratic Caucus — signed it in the wake of a leaked draft of the decision.
It outlined policy suggestions such as expanding access for medication abortion and providing resources to women who travel across state lines to get abortions. Medicaid beneficiaries should also be able to receive family planning services at a provider they choose. It also urged the administration to explore an audacious proposal for the federal government to lease federal land to abortion providers, with the theory being that state laws wouldn’t be applicable there. Since the high court announced its decision, that novel idea has been touted by some of the nation’s most prominent Democrats, including Rep. Alexandria Ocasio-Cortez of New York.
However, officials from the White House have expressed serious concern about the possibility of federal abortion enclaves being established in countries where it is prohibited. “While this proposal is well-intentioned, it could put women and providers at risk,” a White House official who declined to be named tells TIME. “And importantly, in states where abortion is now illegal, women and providers who are not federal employees could be potentially be prosecuted.”
Even some of the policy’s advocates recognize that it would put the government in tricky “untested” waters. Rachel Rebouché, the interim dean at Temple University’s law school, says a statute called the Assimilation of Crimes Act means doctors and women might still be at risk of criminal liability.
The statute “says if there is no federal law on point, then the federal jurisdiction will assimilate the state criminal law and that’s what will apply,” she explains to TIME. Others have pointed out the Hyde Amendment which prohibits federal taxpayer money from being used for abortions.
“The president opposes the Hyde Amendment, but it remains law and generally prohibits funding abortion except in cases of rape, incest, and threats to the life of the mother,” the White House official says. “We are going to continue to look at everything we can do, consistent with Hyde, to protect a woman’s right to choose.”
When asked by CNN about the topic, Vice President Kamala Harris dismissed the idea. “It’s not right now what we are discussing,” she said.
About half the countries are likely to prohibit abortions after this ruling. 13 states already have trigger laws that are intended to restrict or ban abortions in case the Supreme Court strikes down. RoeSome of these laws are currently being challenged in court. Ten states already have laws prohibiting abortions that were in effect before 1973’s landmark ruling. These laws will also be back in force. Many other GOP-led States, including Ohio, have also begun to adopt restrictions regarding abortion.
Some national Republican leaders like Mike Pence (ex-Vice President) want abortion access to be restricted even more. They are calling on Republicans to continue pushing for a nationwide ban.
With little Biden can do to change the situation in the immediate future, he’s making it a political issue—arguing to voters that electing more Democrats in November would enable them to enshrine abortion rights into federal law.
“The president is being straight with the American people, taking major actions under executive authority as he fights this extreme decision very hard but being clear and honest that only Congress can fix the situation,” the White House official says.
Murray for her part, shared the sentiment. “There are limits to what the president can do on his own—and as Republicans eye a nationwide abortion ban, the clearest path to protecting a woman’s right to make her own health care decisions, free of interference from extreme politicians, is by electing a pro-choice majority in the Senate and protecting our pro-choice majority in the House,” she says.
Soon after May’s draft ruling was leaked, Democrats passed a vote for a bill to codify a nation’s right to abortion. The Senate is evenly divided and 60 votes are needed in order to overcome a filibuster. In addition, the Democratic caucus only has 50 members. Sens. Senators.
If Sinema or Manchin don’t change their mind, then the White House believes that the only solution is to elect more Democrats to abolish the filibuster.
According to people familiar with the issue, Democrats will again try to boost support for abortion in the states that ban it by considering legislation to prohibit states from prohibiting mail-order medication from certain states. TIME has learned that 60 votes are required in the Senate to approve the Senate’s effort. A House aide says this.
“Federally,” the staffer says, “we’re at a dead end.”
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