Biden’s Long Game on Abortion Runs Into Harsh New Reality

After the Supreme Court unexpectedly allowed a near-total ban on abortions to go into effect in Texas earlier this month, the White House tasked a newly-formed internal office with helping coordinate an “all-of-government” response to the most aggressive strike against abortion access in nearly half a century.

On Monday afternoon, the White House’s response finally began to take shape.

In a policy statement released by White House officials, the Biden administration declared that it “strongly supports” the passage of the Women’s Health Protection Act, legislation that would protect the right to receive abortion services under federal law.

“In the wake of Texas’ unprecedented attack, it has never been more important to codify this constitutional right and to strengthen health care access for all women, regardless of where they live,” the statement says. “The constitutional rights of women are essential to the health, safety, and progress of our nation. Our daughters and granddaughters deserve the same rights that their mothers and grandmothers fought for and won—and that a clear majority of the American people support. We will not allow this country to go backwards on women’s equality.”

In the statement, the White House committed to working with Congress to pass the legislation, but, like other Democrats who have voiced support for the bill, did not outline a legislative strategy to overcome a near-certain filibuster of the legislation—or how to prioritize the act as the Senate remains entangled in fights over infrastructure legislation, the looming debt ceiling, spending bills, and reconciliation.

The White House has tasked its Gender Policy Council—a first-of-its-kind group chaired by Jennifer Klein, a former senior adviser in the State Department’s Office of Global Women’s Issues, and Julissa Reynoso, chief of staff to Dr. Jill Biden and nominee to be the U.S. ambassador to Spain—with being the administration’s point of contact for the pro-choice movement. Its mission, according to administration officials, is to help coordinate the response to S.B. 8 across different executive branches.

“One reason I became the first president in history to create a Gender Policy Council was to be prepared to react to such assaults on women’s rights,” Biden said in a statement on September 2, one day after the Supreme Court allowed S.B. 8 to go into effect. “Hence, I am directing that council and the office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the federal government can take to ensure that women in Texas have access to safe and legal abortions.”

Since then, the Gender Policy Council has received the public support of top administration brass, with Vice President Kamala Harris appearing last week in her office with more than half a dozen abortion advocates and providers, whom she called “national heroes,” at a roundtable about protecting reproductive rights.

“The president and I are unequivocal in our support of Roe v. Wade, and the constitutionality of Roe v. Wade, and the right of women to make decisions for themselves with whomever they choose about their own bodies,” Harris said. “No legislative institutions have the right to circumvent the Constitution of the United States in an attempt to interfere with, much less to prevent, a woman to make those decisions.”

Biden Admin Sues Texas After SCOTUS Wipes Its Hands of ‘Unconstitutional’ Abortion Ban

But it was Harris’ response to a shouted question about potential legislative solutions to S.B. 8, rather than the roundtable discussion to follow, that garnered the most hope from advocates.

“On the issue of laws, the president has said, I have said, and I will repeat myself: We need to codify Roe v. Wade,” Harris said.

Beyond that statement, the White House took its time before committing to backing any specific legislative remedies, despite calls from allied organizations to explicitly endorse the Women’s Health Protection Act. House Speaker Nancy Pelosi has announced plans to bring the act, which has 48 co-sponsors in the Senate and 192 co-sponsors in the House, to a vote next week—and advocates for abortion access say that the Biden administration’s explicit support for the legislation is critical to its passage.

As the Biden administration explores potential pathways to combating the law and its imitators in other states, supporters of abortion access say that they are largely pleased with the council’s initial role as the White House’s point of contact for abortion providers and advocates.

In the post-Roe v. Wade era of the fight over abortion access, opponents of the procedure have generally followed a strategy of passing legislation that incrementally curtails access to abortion, like requiring that doctors have admitting privileges at nearby hospitals or mandating financially prohibitive renovations to abortion clinics. Supporters of abortion access, in turn, have relied on the legal precedent set by Roe and Planned Parenthood v. Casey to prevent those laws from taking effect, eventually leading to them being struck down as unconstitutional.

But S.B. 8, the Texas law, was explicitly constructed in order to muddy the waters for ordering an injunction against enforcement—the law delegates enforcement not to state officials, who could be sued over the law in federal court, but to everyday Texans, who are effectively deputized as anti-abortion bounty hunters complete with a $10,000 reward—has reinvigorated the pro-choice movement’s interest in legislative protections for abortion rights.

This is particularly true in light of the increasingly conservative makeup of the Supreme Court, said Katherine Franke, a professor at Columbia Law School and director of the Center for Gender and Sexuality Law. In Franke’s view, the pro-choice movement’s reliance on courts has reached its logical end, with the only way to secure access to abortion nationwide being the passage of federal legislation.

“For too long, advocates working in this area have primarily relied on the courts and litigation strategies to defend access to reproductive health care,” Franke said, which she noted was only “meagerly” recognized under Roe.

“Rather than a backward-looking defensive strategy, we need to prioritize forward-looking new approaches that not only shore up the thin thread holding Roe, but expand access to reproductive health care,” Franke continued. “It is my hope that the synergies of a ‘whole-of-government’ strategy… can motivate new creative interventions.”

The stakes of passing the Women’s Health Protection Act, already made clear in the wake of S.B. 8, were raised even higher on Monday when the Supreme Court announced that it will hear arguments on Mississippi’s 15-week abortion ban on December 1. That law, which was signed into law as a direct challenge to Roe, is seen by abortion access supporters as an existential threat to the 1973 precedent.

In a recent interview on CNN, White House Chief of Staff Ron Klain said that the administration would try to address the Texas ban on a federal level, “if at all possible,” but avoided committing to any legislative fix. In a gaggle with reporters aboard Air Force One on Sept. 3, deputy White House press secretary Karine Jean-Pierre told reporters that while Biden “wants to get the best ideas on the table,” legislative action remained just one of many potential avenues.

“We’re looking at legislative actions—what are the best legislative actions, what are the actions that the administration itself can do—and he wants to see action and remains committed to that,” Jean-Pierre said.

Allies aren’t concerned that the White House isn’t a strong ally on the issue of protecting abortion access, citing the Gender Policy Council’s work since before the Texas law even went into effect as evidence of Biden’s commitment to the issue.

“Since abortion became virtually inaccessible in Texas on September 1, Planned Parenthood and our partners in the reproductive rights coalition have been in regular contact with the council and agencies, who are working around the clock to lead the White House’s whole of government response,” said Jacqueline Ayers, vice president of government relations and public policy at Planned Parenthood Federation of America. “We are encouraged by their partnership and the developments thus far, knowing we have much more to do.”

The concern is instead with the slim chances of passage that the Women’s Health Protection Act faces without the aggressive support of the Biden administration. With the Senate filibuster in effect, the legislation would require 60 votes in the chamber in order to pass—the kind of congressional moonshot that Biden, who his press team routinely calls “a creature of the Senate,” would be critical to achieving.

Sen. Richard Blumenthal (D-CT), one of the bill’s lead sponsors, told The Daily Beast that he is hopeful that the administration will use the bully pulpit to its benefit.

“Congress must act now and pass the Women’s Health Protection Act before other states follow the lead of Texas and institute restrictions that eviscerate reproductive health care and choice,” Blumenthal said. “We applaud Speaker Pelosi for her announcement that the Women's Health Protection Act will be brought to the floor for a vote when the House returns, and President Biden for his intent to use a whole-of-government effort to respond to the Supreme Court’s assault on reproductive rights.”

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