What Is Biden’s Plan if the Supreme Court Kills Roe v. Wade? He’s Not Saying

Despite the potential for constitutional chaos—and the federal government’s assumed role in detangling it—the White House has kept almost entirely mum about President Joe Biden’s plans to protect abortion access if the Supreme Court overturns Roe v. Wade, as nearly all abortion advocates and legal scholars expect it to do next spring.

Beyond a public policy statement backing the passage of the Women’s Health Protection Act, the White House has not indicated what the administration’s plans are for a post-Dobbs v. Jackson Women’s Health Organization legal landscape, from approval of telehealth prescription of medical abortion pharmaceuticals by the Food and Drug Administration (FDA) to a much-needed Justice Department review of the legality of pre-Roe abortion laws that remain on the books in a dozen states.

“There’s definitely going to be a lot of chaos and legal wrangling, especially because we’re likely to see state conflict,” said Mary Ziegler, a professor at Florida State University College of Law who specializes in the legal history of reproduction, abortion, and the Constitution. “If we see states like California saying, ‘You can come from out of state to get an abortion,’ and there are states that are going to then say that it’s illegal to provide abortion to someone from across state lines or that telehealth abortion is illegal, that’s going to lead to potential chaos.”

But private expectations among abortion providers and advocacy groups that the FDA may rescind restrictions on mifepristone—one of two medications taken to induce a medical abortion—as early as this Thursday have sparked hope that the administration may be quietly gearing up to address the looming crisis.

“We expect to hear news later this week about the FDA’s review” of mifepristone, said Ford. Under decades-old FDA rules, mifepristone may only be dispensed at a hospital, medical office, or increasingly scarce abortion clinic under the supervision of a certified health-care provider. Allowing women to pick it up at a pharmacy, advocates say, is critical to expanding access to a drug that has few complications.

“We are hopeful that the evidence-based evaluation will result in the Food and Drug Administration following the science and removing all medically unnecessary restrictions on medication abortion care that push access out of reach,” Ford said.

The expected loosening of restrictions on mifepristone would be the latest of many actions the Biden administration has taken to protect and expand abortion access in the president’s first year in office. Within weeks of his inauguration, Biden eliminated the “global gag rule,” restoring U.S. funding to international health organizations that provide information about abortion. Since then, the Biden administration has reversed a Trump-era regulation that barred providers who received federal funds for family planning from mentioning abortion to patients and required that those providers make all FDA-approved contraceptives available.

The administration has pointed to other major policy priorities—many of them contained within the “Build Back Better” bill currently stuck in the Senate—as creating a more hospitable climate for reproductive choice, from increasing funding to fight maternal death disparities among women of color to child tax credits that alleviate some of the financial burdens of parenthood.

But concerns about Biden’s commitment to the issue continue among abortion-access advocates, in part due to his language about the issue—or lack thereof.

Nearly one year into his presidency, Biden has not spoken the word “abortion” in any public remarks, according to a review of official White House transcripts, and has only used the word twice in statements released under his name.

“The president could do more to educate Americans about the need to protect abortion access,” said Kamyon Conner, executive director of the Texas Equal Access Fund. “At a minimum, Biden could be more vocal and public about his support of abortion access—especially during this time. Biden and all of his administration have platforms they could use to uplift this issue, but we’re not seeing them leverage them.”

Biden’s preference for language about “women’s health” or “reproductive choice” or making “Roe the law of the land” is likely a decision intended to express support for the pro-choice movement’s policy goals without inflaming their opponents.

“He doesn’t seem to have a problem using that kind of language—it’s just the actual word ‘abortion,’” Ziegler said. “There are people in the abortion-rights movement who are very progressive, who see abortion as a positive good, who thinks that not talking about abortion is stigmatizing. And there are people who are pro-choice who maybe don’t think abortion is moral, or they’re not comfortable with abortion, but they still think abortion is your right, and they still think abortion should be legal.”

That tactic is a longstanding one for Biden, a churchgoing Catholic who once condemned Roe decades ago before moderating his position on abortion. In his 11,000-word “Biden Agenda for Women” released during the campaign, the word “abortion” was mentioned only once.

“Honestly, the bare-minimum, free, no-executive-action-needed thing he can do is to talk about what’s going on. He has been in office 328 days and has refused to address the nation on anything related to this crisis,” said Renee Bracey Sherman, founder and executive director of We Testify, an organization that seeks to de-stigmatize the issue of abortion. “We have yet to hear the president say the word ‘abortion’ himself. That is a really terrible signal that he does not take this seriously and he is turning his back on people who need and have abortions when we need him to speak out with us most.”

Biden’s preferred use of anodyne language, one abortion provider said, is politically understandable in a world where Roe is settled law, but unhelpful as it faces potential overturning.

Dems See Political Opportunity in a Looming Abortion Disaster

“I think he’s trying to thread the needle, so to speak,” said Dr. Louise Perkins King, an assistant professor of obstetrics, gynecology and reproductive biology at Harvard Medical School and a gynecologic surgeon at Brigham and Women’s Hospital in Boston. “But in this moment, given the rhetoric and given where this is headed, and given that women will die? Yeah, I think he could say the word ‘abortion.’”

The White House defended Biden’s record on abortion to The Daily Beast, pointing to the strong policy statement supporting the passage of the Women’s Health Protection Act (WHPA) and stressing that two statements issued under his name had mentioned the word “abortion.”

“Every woman—every American deserves access to healthcare, including reproductive healthcare, and the president is deeply committed to the constitutional right,” White House press secretary Jen Psaki told reporters on Dec. 8. “As we’ve outlined before and as he’s mentioned before, he’s committed to working with Congress to codify the constitutional right to safe and legal abortion, as protected by Roe and subsequent Supreme Court precedent. He’s announced his strong support for passage of the Women’s Health Protection Act and urges Congress to pass it.”

Abortion advocates were pleased when the administration released a statement supporting WHPA, calling the legislation a potentially critical tool for abortion access if Roe is overturned—but are also quick to concede that, given the current makeup of Congress, the bill is a pipe dream.

“The easiest way to create some semblance of sanity would be a federal law that would clearly preempt whatever states are trying to do, but that’s obviously not just the Biden administration’s job that's doing that,” said Ziegler. “If the Senate doesn’t have the votes, then I just don’t know what the Biden administration can do.”

Democrats, weary of blaming every policy shortfall and legislative dead-end on the filibuster and a conservative Supreme Court, may finally be able to muster action on the Senate rule that effectively prevents passage of most legislation without a 60-vote majority, or even potentially expanding the nation’s highest court—but it may take the downfall of Roe to get there.

“Barring changes like that, we’re not going to see federal legislation now,” Ziegler said. “The faster the Supreme Court moves against Roe, the more likely I think you are to see serious conversations about getting rid of the filibuster and expanding the Supreme Court… It’s much more likely to be something that we see politically palatable to the administration in the event, that there's a big backlash to the court by overruling Roe.

But, Ziegler added, “I don’t imagine that would be something they would do ahead of time.”

What will really help prepare for a post-Roe world, abortion access advocates told The Daily Beast, is effectively the health policy equipment of preemptive triage: expanding telehealth prescription for abortion medications, increased funding for family planning organizations and groups that are already preparing to aid people in need of abortions with travel expenses, and fighting efforts by some states to exclude Planned Parenthood and other abortion care providers from Medicaid.

“Roe hasn’t meant anything to most people who need abortions in a long time,” said Bracey Sherman, whose organization worked with other groups to create an abortion-access blueprint for the Biden administration earlier this year. “We’d love to see Biden dig into some of them.

The initiatives range from allowing abortion providers to practice on federal land to avoid state restrictions to repealing President Barack Obama’s Executive Order 13535, effectively a codified version of the Hyde Amendment, which bars federal funds from being used for most abortion services.

Telehealth access to abortion care, in particular, may be the single most important tool for providers and patients if Roe is overturned. Currently, physicians can only practice telehealth in the state in which they are licensed, an expensive and time-consuming process that restricts providers from treating patients in need.

”FDA approval of telehealth prescription and medical abortion pharmaceuticals would be outstanding and needs to happen regardless of what happens in Dobbs,” said King, who said that the ability for a doctor to provide abortion medications directly to patients is critical in states where pharmacists can deny medications if they morally object to their use.

“We still, in this country, allow pharmacists to conscientiously object,” said King. “A pharmacist can refuse to dispense medication. So in areas in which abortion access is limited, persons who need these medications will not be able to access them over the counter either—so it has to be through telehealth.”

The White House did not respond to questions about permanently allowing telehealth prescription of abortion medications, although the Biden administration did implement the policy on a temporary basis in April due to the coronavirus pandemic.

But the White House’s history of avoiding the appearance of politicizing medical science or policy decisions by the FDA during the pandemic have advocates worried that the matter is being left up to a slow-churning bureaucracy—potentially leaving physicians and patients stuck waiting in the meantime.

“We are at crisis moment for abortion access in this country, and we need a proportionate response from all levels of government, including the executive branch,” said Jacqueline Ayers, senior vice president of policy, organizing and campaigns at the Planned Parenthood Federation of America. “President Biden has ordered a ‘whole-of-government’ response to address the ongoing challenges to abortion access, and the steps that the administration has taken thus far have been critical and needed. But much more can—and must—be done to blunt the barrage of attacks on our reproductive freedom.”

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