Biden's response to Roe's overturning has been inadequate. Here's how he could do more.
The president should treat the end of federal abortion rights as the health and human rights crisis it is.
President Joe Biden has been roundly pilloried by abortion advocates for his failure to respond forcefully and inventively to the Dobbs decision, in which the Supreme Court gutted abortion rights.
It’s true that Biden is constrained by a conservative court and filibuster-clogged Senate. But he has the power to do more. And he also has the ability to speak more forcefully to delegitimize the court and lay the groundwork for future measures.
Instead, Biden has seemed to put institutions and norms above human rights. He’s treated the rollback of reproductive rights as an electoral opportunity rather than a sweeping assault on democracy and a terrifying health crisis. While he has taken some important steps to safeguard abortion rights, his approach overall so far has been inadequate.
Biden has been criticized by progressives who generally see him as too centrist, like Rep. Alexandria Ocasio-Cortez.
But he’s also faced pushback from usually supportive sections of the party.
After his initial response, in which he emphasized the limits of executive action and failed to offer much in the way of concrete policy responses, 34 Senators signed a letter urging him to lead more strongly and forcefully on abortion rights. The Democratic governors of New York and New Mexico asked him to open abortion clinics on federal land. Abortion rights advocates like journalist Imani Gandy have been disheartened by the president’s response. So has Aimee Allison, founder of She the People, an organization that works to build political power among women of color.
Critics have argued, first of all, that Biden has not used his full power to protect abortion rights. One vital issue here is access to abortion pills via telehealth and through the mails. This could provide desperately needed care to people in states where Dobbs has shuttered abortion clinics.
The draft of the Dobbs opinion leaked May 2. The official Supreme Court decision was handed down June 24. Biden finally issued an executive order codifying some measures on medical abortion last week — but it is still weak on details and firm commitments.
Biden’s executive order asks the Department of Health and Human Services to compile a report on protecting abortion access through medication. The due date for that report is 30 days. Why didn’t he issue the EO in May when the decision was leaked, and have measures ready to go when the decision was announced? This doesn’t feel like urgent action.
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More, advocates already know what actions the administration needs to take to protect abortion access. Chief among them is a commitment to lawsuits contesting state abortion bans on medicine, because such bans are superseded by FDA rules. The government should also remove restrictions on Mifepristone, which make that safe abortion medication much more difficult to access.
The White House has also considered using Medicaid funds to provide money for pregnant people who need to travel across state lines to get an abortion. But while this was first reported as a possibility in May, no action has yet been taken, and no official statement made.
The Biden administration this week did forcefully inform hospitals and health care providers that they are required to perform abortions in situations where they are required for emergency medical care, regardless of state law. That’s a much needed intervention which hopefully will make hospital lawyers think twice before deciding that the safest decision is always to deny abortion services.
Activists and progressives (including Sen. Elizabeth Warren) have called on Biden to take more forceful and riskier steps. High on the list has been a call to use federal lands in anti-abortion states, like military bases and VA hospitals, to provide abortion services.
Because of the Hyde Amendment, the government is barred from spending money directly on abortion care. However, opening federal lands to other providers could theoretically be allowable, though it would probably lead to legal challenges.
The Biden administration is also reportedly concerned that a later Republican federal government could prosecute women who receive abortion services and providers that offer them. The government should have some options here, though; Biden can pardon people to protect them from federal prosecution, and binding non-prosecution agreements might be an option as well. The administration has been reticent about discussing such options, even though, again, they had plenty of time to explore them already.
Biden has also been urged by numerous critics, including Democratic House members, to declare a public health emergency. He’s reportedly been weighing the issue (though again, he’s known this was coming for going on two months now, so it’s unclear why it hasn’t been weighed already). Declaring a public health emergency would not release a lot of funds or legal authority. But it would be a big news headline, show his commitment, and perhaps alert people to the ongoing crisis.
Biden’s defenders argue that steps like this are merely cosmetic measures. But a lot of what a president does is highlight important issues and provide public guidance on where the party and the country should go.
Illinois Governor J.B. Pritzker — hardly a radical figure — announced a special session of the Illinois legislature to further codify abortion rights in the state an hour after the Dobbs decision was handed down. It was clear he had used the time since the leak to prepare a forceful and immediate response. In contrast, Biden’s administration has seemed at sea, frittering away their lead time and having to be pushed to take any and every step.
For example, after sustained pressure from basically every part of the Democratic coalition, Biden agreed a week after Dobbs that he would support a filibuster carve out to allow the Senate to codify abortion rights nationally.
But he still opposes expanding the Supreme Court. That’s infuriating, because expanding the court is the only way long term to fight for abortion rights. The conservative, partisan, and tyrannical court is likely to overturn a national abortion rights law as soon as it can, if one is passed.
More, Biden has been chary of even criticizing the court, and reportedly worries about delegitimizing it. He doesn’t seem to see that it is his job to protect the Constitution and his constituents, not to preserve a court riding roughshod over both. He should be openly campaigning against the court and making the case that it is a threat to democracy. He needs to build a consensus to fight the court directly and explicitly in the name of bodily autonomy and liberty.
Biden’s done a little better in this regard recently; he did acknowledge that the court was “out of control” in recent remarks. The president can be pushed, slowly, toward better positions. But at a moment of great crisis, many Democrats and progressives were hoping for a president who immediately understood the need for action and leadership.
Roe remains broadly popular; Dobbs is supported by only about one-third of respondents. Fully 59 percent of Americans say they’d support a Congressional law protecting abortion rights nationally. In a heavily partisan nation, you don’t get much more of a consensus than that.
But Biden — who opposed Roe for many years — has approached abortion rights tentatively, like someone who fears backlash, even as his party hopes that passion on abortion rights will power Democrats to victory in the midterms.
Biden himself has repeatedly called for Democrats to vote to protect abortion rights. Voting and contributing to candidates are very important tools to defend abortion. But so are executive action and presidential leadership. People are more energized to fight for you if they feel you’re fighting for them. Biden has to do better, and he has to do more.
That’s it for this week
Thanks for reading, have a great weekend, and I’ll be back with more Monday. Cheers — Aaron