President Joe Biden made a promise to progressive advocates to take executive action and push Congress to protect abortion access should the Supreme Court overturn Roe v. Wade.
Still, even some of his closest allies are in the dark on what that will look like, and questions abound on the extent to which he'll be able to deliver on that pledge.
The president's initial response to the leaked draft opinion written by Justice Samuel Alito did not differ much from his past statements on the topic. Namely, he recounted directing the White House counsel and the Gender Policy Council to begin crafting executive actions after Texas passed a six-week abortion ban.
"Shortly after the enactment of Texas law SB 8 and other laws restricting women’s reproductive rights, I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an Administration response to the continued attack on abortion and reproductive rights, under a variety of possible outcomes in the cases pending before the Supreme Court. We will be ready when any ruling is issued," he wrote in a statement.
White House officials maintained that the administration is working to secure women's right to choose but would not provide details on avenues the president is considering.
White House press secretary Jen Psaki told reporters Wednesday not to expect movement on specific proposals until after the court publishes its final decision. However, experts have floated two specific proposals Biden could take, both of which would likely face legal challenges.
First, the president could lift regulations limiting the prescription of mifepristone, a medication approved by the Food and Drug Administration to terminate pregnancies up to 10 weeks.
The FDA previously required mifepristone to be prescribed in person, yet the FDA loosened that requirement during the pandemic in accordance with the federal government's efforts to expand telehealth services, and while 19 states currently have their own laws requiring that the medication be disbursed in person, Greer Donley says, "There is some support for the idea that states cannot ban FDA-approved medication."
"This is a novel legal argument," Donley, an assistant professor at the University of Pittsburgh Law School focusing on reproductive rights, said in February. "Maybe it would mean states cannot ban the sale of medication abortion, which would mean states must allow abortion up to 10 weeks."
"The most significant thing the Biden administration has done is through the FDA," a Florida State University law professor added. "The most significant things the Biden administration will be able to do going forward are through the FDA."
Drexel University law professor David Cohen has also suggested that leasing federal lands to women's clinics or other abortion providers could allow them to operate in states with abortion bans.
"It is possible that clinics can operate on federal lands without having to follow state law. That has to be explored," he wrote. "The federal government needs to push the envelope. It’s not a slam-dunk legal argument, but these are the kinds of things that need to be tried."
Though not necessarily a flex of executive authority, Biden has repeatedly sought in recent days to color the conversation as a fight for all privacy-related rights, not just abortion.
"It goes far beyond, in my view, if it becomes a law and if what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose," he said Tuesday. "It goes to other basic rights: the right to marry, the right to determine a whole range of things. Because one of the issues that this court — many of the members of the court, a number of the members of the court — have not acknowledged is that there is a right to privacy in our Constitution."
The president also expressly politicized the conversation by reiterating calls for Congress to codify Roe v. Wade and urging voters to elect "more pro-choice Senators and a pro-choice majority in the House" in the midterm elections.
"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," he wrote Tuesday. "It will fall on voters to elect pro-choice officials this November. 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."
Despite Biden's request of Congress, White House press secretary Jen Psaki has noted that legislative solutions are effectively out of the question until at least next year, even if Democrats eliminate the filibuster.
"I think it's important to note that there has been a vote on this, and it failed," Psaki told reporters during a Tuesday gaggle aboard Air Force One. "It did not have even 50 votes, which means even if the filibuster were overturned, there would not have been enough votes to get this passed."
"This is one of many topics he discusses with lawmakers. I would note, again, that [Senate Majority] Leader [Chuck] Schumer indicated he plans to bring it up again," she continued. "But in the president's statement, just to reiterate, what he pointed to is the fact that there needs to be more pro-choice officials after the elections in November."
Schumer has scheduled another vote on a bill expressly codifying Roe and removing the Hyde Amendment, yet even if centrists such as Lisa Murkowski (R-AK) and Susan Collins (R-ME), both of whom have expressed concern over the leaked Alito opinion, side with Democrats, that vote is expected to fail.