The administration’s actions on abortion suggest that it understands political and legal reality.
The administration’s actions on abortion suggest that it understands political and legal reality.
T he Biden White House is in a bind on abortion. On the one hand, the staffers, activists, donors, think-tankers, academics, and pundits who make up the Democratic Party inside the Beltway and in its blue-state strongholds see abortion in near-sacramental terms. To them, abortion is a paramount and massively popular national legal right, and defending it at all costs is the most important of all political causes. They cannot see any downside to a long-predicted campaign of federal resistance to the Supreme Court decision returning the issue to the political process in general and to the states in particular. CNN’s Edward-Isaac Dovere has hilariously detailed the angst among this class at the slow, indecisive nature of Biden’s response to Dobbs:
Debra Messing was fed up. The former “Will & Grace” star was among dozens of celebrity Democratic supporters and activists who joined a call with White House aides last Monday to discuss the Supreme Court overturning Roe v. Wade.
The mood was fatalistic, according to three people on the call. . . .
Messing said she’d gotten Joe Biden elected and wanted to know why she was being asked to do anything at all, yelling that there didn’t even seem a point to voting. Others wondered why the call was happening. . . .
The call, three days after the decision eliminating federal abortion rights, encapsulates the overwhelming sense of frustration among Democrats with Biden. It offers a new window into what many in the President’s party describe as a mismanagement permeating the White House.
Top Democrats complain the President isn’t acting with – or perhaps is even capable of – the urgency the moment demands.
“Rudderless, aimless and hopeless” is how one member of Congress described the White House. . . .
White House counsel Dana Remus had assured senior aides the Supreme Court wouldn’t rule on abortion that day. A White House press aide assigned to the issue was walking to get coffee when the alert hit. Several Democratic leaders privately mocked how the President stood in the foyer of the White House, squinting through his remarks from a teleprompter as demonstrators poured into the streets, making only vague promises of action because he and aides hadn’t decided on more.
Notwithstanding the heat the White House took from the progressive grassroots, there are multiple rational reasons for Biden to be cautious in pursuing a “pen and phone” defense of abortion rights. This administration has already repeatedly watched the Supreme Court strike down its efforts to “do something” far beyond the legal authority granted to the executive branch by Congress or the Constitution. The Hyde Amendment — which Biden himself supported from 1976 until 2019 — puts some fairly explicit limits on federal funding of abortions. Any acts taken by executive fiat can be reversed or even turned to pro-life purposes by the next Republican president. A looming Republican takeover of the House makes the federal bureaucracy more nervous about taking unilateral actions that could end in congressional hearings. And the president is so personally unpopular that inserting himself into the issue might well do more political harm than good: Many key midterm elections will be waged in parts of the country where an unrestricted nine-month abortion right is unpopular, and the White House has surely heard from Democrats in those places. Finally, Biden himself, though he may wield little control over events in his own administration these days, surely retains some memory of why he once took more-moderate stances on the issue.
So, we’ve gotten a compromise response: an executive order signed by Biden today, a statement by Attorney General Merrick Garland, a Defense Department memo to military personnel, and a barrage of statements and orders from Health and Human Services secretary Xavier Becerra.
First, the bad news. Elizabeth Warren and other congressional Democrats have demanded that the Federal Trade Commission crack down on free speech by crisis-pregnancy centers, out of fear that the centers will persuade pregnant women not to have abortions. Biden’s order states that he, “has directed the Secretary of HHS, in consultation with the Attorney General and Chair of the FTC, to consider options to address deceptive or fraudulent practices, including online, and protect access to accurate information.” Without new legislation of the sort Warren is proposing — to say nothing of repeal of the First Amendment — the legitimate authority of the federal government to do much on this front is dubious, but Biden is publicly signaling his support for the federal administrative state’s getting as adventurous as it likes in harassing people and institutions offering help to pregnant women. The various orders also sketch out a multi-pronged strategy to promote chemical, non-surgical abortion by pill; to wage legal war against states that try to prevent their residents from seeking abortions in blue-state abortion havens; and to provide abortions to military personnel and DoD civilian employees under some circumstances.
Biden’s order calls for teams of lawyers to “encourage robust legal representation of patients, providers, and third parties lawfully seeking or offering reproductive health care services throughout the country. Such representation could include protecting the right to travel out of state to seek medical care.” Garland’s statement likewise contends that “under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal. Moreover, under fundamental First Amendment principles, individuals must remain free to inform and counsel each other about the reproductive care that is available in other states.” This undoubtedly will prompt further legal combat, perhaps setting precedents on interstate travel and the advertisement of locally illegal products and services that progressives could live to regret when they’re applied to, say, the sale of guns.
Now, the good news. Biden has, for the moment at least, rejected calls to declare the Dobbs decision a “public-health emergency,” which would have triggered another round of lawsuits and redirected emergency funds appropriated to fight Covid toward abortion providers. Even Becerra acknowledged that “anything we do, we know we’re going to be in court the next day. . . . We have to make it stick. We’re not going to over-promise because the worst thing you can do is over-promise early.”
Biden has also, at least for now, not taken the path suggested by some in Congress and the commentariat of turning Army bases, national parks, and Native-American reservations into giant abortion clinics, or effectively converting the military into an “Abortion Force” that ferries red-state women to federal land so they can have abortions. The DoD letter recognized that “Federal law restricts the Department from performing abortions or paying to have them performed unless the life of the mother would be endangered if the fetus were carried to term, or unless the pregnancy is the result of rape or incest.”
Politically, this may be the worst of both worlds: Pro-lifers will be reminded that the Biden Democrats are still wholly committed to a pro-choice stance, while pro-choice Democrats will be further depressed by the impotence of the president.