Democrats are increasing pressure on President Biden to take executive action to protect abortion rights in the wake of the Supreme Court overturning Roe v. Wade.
Action from the president alone cannot reverse the slew of state bans going into effect after Friday’s ruling, but vocal Democrats say the urgency of the moment requires taking all action available to increase abortion access as much as possible.
Sens. Elizabeth Warren (D-Mass.) and Patty Murray (D-Wash.) led a group of 23 other Senate Democrats calling on Biden to explore a range of executive actions, including allowing abortions to be performed on federal property and providing vouchers for women to travel out of state to get an abortion.
“As extremist judges and Republican politicians intensify their efforts to strip Americans of their basic reproductive freedoms, you can demonstrate to the country and women everywhere that you will do everything in your power to fight back,” the senators wrote to Biden in a letter this month.
The Congressional Black Caucus called on Biden to declare a public health emergency around abortion to “utilize additional flexibilities and deploy resources where necessary.”
Rep. Alexandria Ocasio-Cortez (D-N.Y.), speaking at a protest on Friday, called it the “babiest of the babiest of the baby steps” for Biden to “open abortion clinics on federal lands in red states right now,” in addition to even more far-reaching steps like expanding the Supreme Court.
The pressure is a test of how far Biden is willing to go on the issue with much of his party outraged and demanding action. The president, a Catholic, has had an at-times complicated history on abortion, for example reversing his support for the Hyde amendment banning federal funding for abortion amid controversy in 2019 during the Democratic presidential primary.
Biden’s response to the ruling so far has emphasized calling on the public to elect more Democrats in November so that Congress has the votes to codify Roe v. Wade into law, rather than executive action.
Biden did allude to two actions his administration can take: protecting access to abortion pills and ensuring people are not blocked from traveling across state lines for abortions.
But Lawrence Gostin, a health law professor at Georgetown University, said he was “underwhelmed” by the steps Biden has announced so far.
Biden and Attorney General Merrick Garland should more explicitly say they will challenge any state blocking access to abortion pills in court, Gostin said, citing the argument that federal approval of the pills from the Food and Drug Administration takes precedence over state restrictions.
Asked about allowing abortions on federal lands, Vice President Harris told CNN’s Dana Bash on Monday “it’s not right now what we are discussing,” pivoting to the stakes in November’s elections.
“We have to also recognize, Dana, that we are 130-odd days away from an election which is going to include Senate races,” she said. “Part of the issue here is that the court has acted, now Congress needs to act.”
Asked on Saturday about Biden’s “seeming lack of urgency” on abortion rights, White House press secretary Karine Jean-Pierre pushed back, saying there has been “a lot of urgency.”
She pointed to Biden’s remarks on the importance of protecting abortion pill access and the ability of people to travel out of state to get an abortion.
She did not go into specifics on any further actions. “I know people are asking about executive actions,” she said. “The president is going to continue to find solutions. He’s going to continue to talk to leading groups. He’s going to continue to talk to legal experts on what he can do from his … own executive perch.”
It is unclear legally whether allowing abortions to be provided on federal land would work, given the Hyde amendment banning federal funds from being used for abortion, Gostin said, but he argued it is “worth a shot.”
“The White House can’t be cautious,” he said.
There is a risk of state prosecution of people involved, though, if a state outlawed abortion.
Harris was more open when asked about vouchers or other forms of financial assistance for lower-income women seeking to travel out of state for an abortion.
“We know that on this issue, women who have access to resources will probably be far less impacted by this decision than women who don’t have resources,” Harris said. “So this is something that we are looking at.”
Declaring a public health emergency could help on the margins, for example freeing up some funding, said Neil Siegel, a Duke University law professor, but it cannot override state law.
“I’m not aware of any power the president has to declare a public health emergency that would override or preempt state legislation restricting access to abortion,” he said. “A declaration of a public health emergency could empower the president to enhance access to care in states that permit it, and perhaps provide resources to pregnant people who want to travel interstate or receive abortion medication via the mail.”
Some calls for action have not outlined specific steps.
A group of 33 Senate Democrats over the weekend simply wrote to Biden: “Now is the time for bold action to protect the right to an abortion.”