The White House is taking steps toward the end of Roe vs Wade. As per senior government sources, President Biden’s top advisers are debating if he can or should take a number of executive actions to help women in Republican-controlled states get abortions if the Supreme Court strikes down a female’s right to terminate her pregnancy.
Announcing a national public health crisis, preparing the Justice Department to battle any effort to try by states to criminalize travel with the intention of getting an abortion, and trying to claim that Food and Drug Administration regulations authorize abortion medications to pre-empt any laws banning are among the concepts under consideration, according to officials.
Since a draught point of view denoting that the Supreme Court was prepared to overturn the landmark Roe vs Wade decision was leaked last month, abortion rights advocates have been petitioning the White House to take remarkable steps to minimize the effect, which would result in at least 20 states prohibiting or severely restricting access to abortion.
“We are in an abortion access problem in this country, and authorities at all levels of the government, such as the executive branch, must act,” Marya Torrez, senior director of policy development and activities at Planned Parenthood Federation of America, said.
A constitutionally protected right cannot be restored by executive order. To establish a national legal standard prohibiting states from forbidding abortion, Congress would have to act, and supporters presently lack enough votes in the Senate, where Republicans may filibuster such a bill. Biden, on the other hand, has indicated that he intends to go it alone.
“I don’t think the country will stand for it,” Biden said last week on Jimmy Kimmel’s talk show when asked about the possibility of Roe vs Wade being overturned, adding, “There are some executive orders I could employ, we believe.” That’s something we’re working into right now.”
Dana Remus, the White House lawyer, Jennifer Klein, the head of the White House’s gender policy council, and Susan Rice, the director of the White House’s domestic policy council, are in charge of the legal and policy vetting of possible executive actions. Officials claimed Anita Dunn, a senior policy assistant to Biden, is in charge of overall preparation, which includes communications strategy.
The Supreme Court is set to rule in about two weeks, at the conclusion of its term, and White House advisors anticipate the decision would spark a political turmoil, including widespread protests. Adding to the confusion, the decision might be made while Biden is in Europe for the Group of Seven summit.
Contingency plans are also supposed to cover what to do if such a controversial event escalates to violent acts. After one guy, reportedly outraged by expected conservative judgments on abortion and guns, came from California to suburban Washington with the intention of killing Justice Brett Kavanaugh, the government has already increased security for the Supreme Court justices.
The verdict has the potential to change the political landscape at a time when Democrats are expected to lose control of Congress in November’s midterm elections. Biden’s aides have been struggling with legal and political issues as they construct a range of suggested answers against this backdrop.
According to people familiar with the internal discussions, part of the problem is that Biden’s strategy is likely to be perceived as a litmus test by many centrist or liberal-leaning voters. It will place him under an obligation to express strong feelings over the loss of the nearly 50-year-old right to abortion, and it may be better for him to go down fighting instead of alienating some voters.
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Biden has already taken a position that his legal experts advised him would not hold up in court, believing that the political rewards of his executive actions would outweigh the legal risks. As House Democrats pressed him to alter his decision to let a pandemic-related moratorium on trying to evict renters expire in August, Biden acted unilaterally.
Leftists praised the move, which came at a time when he necessary to stay his coalition together in order to push through his legislative agenda. While Biden’s move allowed a little more time for pandemic aid monies to reach tenants, its actual effect was limited since courts, as expected, quickly overturned it — and his detractors charged him of breaking the law.
Some of Biden’s advisers, within and without the government, are cautious of providing Republicans with comparable feedstuff in the abortion debate, which would enable them to shift the political narrative from what their party has done or hasn’t done to sound the alarm about executive power abuse of authority.
Laurence Tribe, a Harvard Law School professor who has consulted with Remus’ team, said in an interview that while he did not want “to pour cold water on people’s peaceful reactions to impending disaster,” some of the proposals the White House was being lobbied to consider were unwise and implausible extensions of executive power.
“It would take attention from the things that are really relevant — that the Supreme Court is out of control and we ought to be very critical of it — and shift the criticism to the president for responding in kind and doing things that are every bit as ungrounded in the Constitution as the court’s overruling of Roe vs Wade will be,” Tribe warned.
Not every idea has elicited the same degree of caution. For example, the administration appears likely to ask the Federal Trade Commission to push makers of apps that track menstrual cycles to warn users that the data could be used to identify women in the early stages of pregnancy.
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But administration officials see other suggestions as extremely risky. One calls for Biden to invite abortion doctors to work at federal enclaves, like military bases, inside states that criminalize abortion. State prosecutors lack jurisdiction in such zones, so the federal government handles crimes there, and it is not always clear whether criminal laws at the state level apply.
Not every concept has generated the same level of apprehension. For example, the government appears to be planning to seek the Federal Trade Commission to force app developers to warn users that their data could be used to detect women in the early weeks of pregnancy.
Other recommendations, on the other hand, are seen as exceedingly dangerous by federal officials. One proposal calls for Biden to allow abortion doctors to work in government enclaves, such as military facilities, within states where abortion is illegal. Because state prosecutors lack authority in such areas, offenses are handled by the federal government, and it is not always obvious if state criminal laws are applied.
Doctors’ state medical licenses could still be challenged. While the Justice Department under Biden may refuse to pursue a case as a matter of policy, the agency’s power might change in the 2024 presidential election, allowing federal prosecutors to charge persons with crimes such as abortion retrospectively.
Several additional executive actions could create doubts about the Hyde Amendment’s breadth, which forbids federal funding from being used to fund abortions. According to reports, the Biden administration asked the Justice Department’s Office of Legal Counsel if the statute also prohibits using that money for abortion-related expenditures such as travel.
Officials from the Obama administration have expressed confidence that the Department of Labor will authorize providing federal employees paid leave to travel to some other state to abort undesired pregnancies. The same can be said about using federal funding to assist low-income women seeking abortions in places where the practice is still permitted.
Deniers of the intention of paying for travel expenses argue that nonprofits are already having to raise private money for the purpose; that it would timely a vote in Congress to prohibit such expenditure, putting Democrats in jeopardy in conservative districts; and that Republican states would sue in front of like-minded judges inclined to describe the Hyde Act more broadly.
“Are we engaging with the law as it is, or as we believe it will be once the right — or incorrect — justices get their hands on it?” According to Stephen Vladeck, a legal professor at the University of Texas at Austin who was briefed by the White House. “If the purpose is the symbolism of having tried, it’s one thing to roll out a bunch of stuff that gets stopped by Republican judges.” But if the purpose is to take effective steps, it isn’t going to assist.”
The government is also considering ways to make it easier for women in states that prohibit abortion to receive abortion drugs from out-of-state pharmacies during the first 10 weeks of pregnancy.
The FDA passed a regulation in December that allows such pharmaceuticals to be administered and supplied via mail during telemedicine visits.
One issue is that doctors are regulated at the state and local level, and practicing medicine without a license in another state is illegal, though determining where a doctor talking virtually with an out-of-state patient is “practicing” can be tricky. Some advocates are encouraging the Biden administration to adopt numerous steps that would reinstate a degree of federal control over abortion law in order to give doctors legal protection.
One suggestion is for the Department of Health and Human Services to proclaim a public health emergency based on projected patient surges at facilities in border areas where abortion is still legal, and then use that crisis to invoke a 2005 statute that protects doctors from legal culpability when they treat patients in areas where they are not licensed.
The FDA should also declare that its regulation permitting the use of abortion pills — or a strengthened version of the rule — preempts state laws prohibiting abortion.
Both actions would rely on broad interpretations of the authority Congress provided those organizations, and they are expected to be met with swift court actions, raising the possibility of rulings restricting the government’s discretion in public health and laws of drug safety.
Another Harvard Law School professor contacted by the White House, Richard Fallon, emphasized that the Supreme Court’s conservative majority has been dubious of agencies’ ability to control key concerns without specific congressional permission. He warned against “false hopes,” stating that the government is in a “very, very difficult position” legally.
Melissa Murray, a reproductive law professor at New York University who has advised the government, said the administration may want to take some “appropriate risks” on executive orders, but that the most important objective should be to get voters to vote.” Everyone always asks me what we’ll do after the decision is made,” she explained. “You may either cry or vote.”
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