The White House is exploring all options to undercut the impact of the expected Supreme Court ruling overturning Roe v. Wade following the leak of a draft opinion that, if adopted, would uphold Mississippi’s 15-week abortion ban and overturn the 1973 landmark ruling that legalized abortion nationally.
In response to the leaked Dobbs v. Jackson Women’s Health opinion, White House officials began considering using executive action to blunt the impact of the expected Roe reversal, including by providing Medicaid funding to women in red states to facilitate their travel to states with more liberal abortion regimes, officials told the Washington Post.
The White House is joined in its efforts by Democratic governor Gavin Newsom, who has declared that he will make California a so-called “sanctuary state” for abortion, expanding the state’s already wide-reaching social safety net to subsidize travel and accommodations for out-of-state women seeking an abortion.
At the federal level, Democrats are rushing to codify Roe into law but are realizing it’s a futile effort in an evenly-divided Congress with two centrist Democratic swing votes repeatedly thwarting radical progressive proposals.
Democrats’ first attempt at abortion legislation failed with the Women’s Health Protection Act a few months ago. To move the needle at the federal level, Democrats have to kill the filibuster, the 60-vote hurdle needed to advance legislation, which moderate Democratic senators Joe Manchin and Krysten Sinema have doubled-down on preserving. Besides a national abortion law, a constitutional amendment could be adopted, which most Democrats understand is a remote possibility.
Some Democrats also fear that an elimination of the filibuster to enshrine abortion rights could backfire in the event of a Republican-dominated Congress and administration, which could outlaw abortion nationally, officials told the Post.
Biden officials were in a frenzy on Tuesday as they grasped that, in many ways, their hands are tied now that the High Court has likely made its judgment, one outside adviser briefed on many meetings told the Post.
Officials are looking at the few executive and regulatory tools they could deploy to help women of lower means in red states retain access to abortion, three outside advisers told the Post. However, the administration is likely to be sued and have many of these measures struck down in lower courts once the Supreme Court has spoken.
“Every single thing they do is going to get legally challenged, and every [government] lawyer agrees,” one anonymous outside adviser told the Post. “A bunch of attorneys general will mobilize, and [the administration] will lose.”
Instead of opting for radical executive action, President Biden said the burden remains on Democrats in Congress to secure the votes for abortion legislation.
“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. And it will fall on voters to elect pro-choice officials this November,” Biden said in a statement Tuesday. “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.”
In the meantime, the Biden administration hopes the fallout from a Roe reversal would mobilize voters to the Democratic ticket in the upcoming 2022 midterm election. Biden conflated the 6-3 conservative majority on the Supreme Court with the supporters of former president Trump in subsequent comments.
“What are the next things that are going to be attacked? Because this MAGA crowd is really the most extreme political organization that’s existed in American history — in recent American history,” Biden said Wednesday.