What Biden could do on abortion rights via executive action

This past weekend, more than 30 Democratic senators had a message for President Joe Biden: They want him to do more to protect abortion rights, and they want him to do it now.

“There is no time to waste,” they said in the letter, which was led by Sen. Patty Murray (D-WA) and sent one day after the Supreme Court announced its decision to officially roll back Roe v. Wade. “You have the power to fight back and lead a national response to this devastating decision.”

This letter is the latest indication of growing pressure on the White House to take additional executive actions in response to the fall of Roe. While Biden is not able to reinstate the protections offered by Roe without Congress, lawmakers and activists have clamored for the president to take other steps, such as finding ways for the federal government to defend abortion access in every state.

Many of these proposals would likely be challenged in court, but proponents emphasize that they’d like to see the administration give them a try before forgoing them completely. For months, some abortion rights advocates have felt that the White House hasn’t been doing enough to address the urgency of the situation, whether that’s weighing more ambitious policies or simply speaking out more forcefully on the subject. Many were disappointed, for instance, to find that Biden hadn’t used the word “abortion” in any presidential speech until recently.

The White House has taken some initial steps — and signaled that further action is on the way — while stopping short of laying out a comprehensive strategy. In a statement on Friday, Biden said he would combat any efforts to prevent people from traveling across state lines for abortions and indicated that the Department of Health and Human Services would work to preserve access to medication abortions to the “fullest extent possible.”

Activists, though, feel there are more avenues the White House should consider. “This is not a time for speeches and hoping people will vote in November,” said Renee Bracey Sherman, the executive director of We Testify, an abortion rights advocacy group. “It’s a time to get creative … to try something and see what happens.”

What advocates and many Democrats want from the Biden administration

The main thing that advocates and many Democrats want from Biden is to take more aggressive actions, even if they’re expected to face legal challenges.

These actions — coupled with inclusive rhetoric about abortions — could send a powerful message about the Biden administration’s solidarity with those affected by the bans. As of early this week, nine states have already implemented trigger laws that include either bans on abortion or severe limitations in access.

Additional ideas that have been suggested include a proposal championed by Sen. Elizabeth Warren (D-MA) and Rep. Alexandria Ocasio-Cortez (D-NY) that would establish abortion clinics on federal lands in states where there are existing bans. Because federal lands aren’t subject to states’ civil laws and there’s room to interpret criminal laws, clinics could theoretically establish themselves on places like military bases without having to deal with a state’s bans.

“Even though the land is inside the border of a state, it wouldn’t be governed by the laws of a state,” Khiara Bridges, the faculty director of UC Berkeley’s Center on Reproductive Rights and Justice, previously told Vox.

Experts note that there is a precedent for federal lands to operate under a different set of policies than state-owned ones. Drexel University law professor David Cohen told Vox that there are past cases when a state’s right-to-work laws have not applied to how companies approach unionization if they are located on federal lands.

Still, it’s an idea that could face legal pushback depending on how federal funds are used. If the clinics are paying the federal government to rent the lands, such an arrangement could circumvent the issue of the Hyde Amendment, which bars the use of federal spending on most abortions. If federal funds are utilized to set these clinics up, their legal standing could be dicier.

The Congressional Black Caucus has called on Biden to declare a national public health emergency, much as he did during the pandemic. When it came to Covid-19, establishing a public health emergency helped prioritize federal dollars for resources like vaccines — though, again, that might be tougher with abortions due to the Hyde Amendment. The caucus as well as many activists believe such an action could help Biden demonstrate how serious the existing crisis is.

Other ideas that have been floated include using federal money to provide vouchers to people traveling across state lines for abortions and enforcing the use of federal Medicaid dollars to provide coverage in the narrow instances in which they can be used. These schemes also face implementation questions, with the first possibly running afoul of the Hyde Amendment and the second facing uncertainty about enforcement.

Where the administration could go from here

Despite condemning the Supreme Court’s decision, the administration has repeatedly cautioned that there’s only so much it can legally accomplish.

“We’re going to continue to see what else we can do,” White House press secretary Karine Jean-Pierre told reporters on Saturday. “I guess what I’m trying to say about the executive actions is that nothing could fill the hole that this decision has made.”

That may be true, but many Democrats — lawmakers and voters alike — want to see Biden at least show that he’s fighting for people on the issue.

So far, a key area of focus is medication abortion: On Friday, Biden said he’d be directing the Department of Health and Human Services, which oversees the FDA, to ensure that people could maintain access to medication abortion, though he offered few specifics on what this would entail.

The FDA has already issued regulations that make it easier to obtain a medication abortion, policies that could counter state bans. In April 2021, it approved changes that enabled people to receive a prescription via telemedicine and get medication through the mail, a regulation the agency made permanent in December.

Nineteen states, however, have passed laws that directly contradict the FDA’s regulations, requiring people to consume abortion pills with a clinician present. Legal experts argue that the Department of Justice could challenge these laws since federal regulations supersede state policies. Attorney General Merrick Garland has said that states can’t ban people’s access to medication abortions, though he has not yet detailed how the DOJ will enforce this.

According to Politico Playbook, the administration is still reviewing other possibilities amid constraints posed by congressional inaction. Due to the filibuster, lawmakers have limited recourse to pass legislation in the Senate, where many bills can’t advance without 60 votes. And given their one-vote majority, Democrats’ ability to approve any abortion rights legislation this term appears highly unlikely.

With that avenue closed, many advocates and lawmakers have been clear that they’ll continue to lobby Biden to take a stronger and more decisive stance. “We’re going to be loud. We’re going to be relentless. Because, Mr. President, we need a plan to protect reproductive rights in America — and we need it now,” Murray said at a June press conference.

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