President Joe Biden has repeatedly declared his support for a woman’s right to have an abortion, albeit without any concrete plans to protect that right. But as the Supreme Court’s near-certain overturning of Roe v. Wade draws closer, abortion-rights advocates want him to put up or shut up.
“Joe Biden is missing in action right now. This is a crisis, and he’s nowhere to be found, he’s not giving us a plan,” said Renee Bracey Sherman, founder and executive director of We Testify, an organization that represents those who have had abortions. “We showed up in November 2020 and handed you the White House, the House, and the Senate. Do your fucking job that you were elected to do.”
With the overturn of Roe essentially a fait accompli and legislative options for protecting abortion access soundly defeated in Congress, supporters of abortion access are now pressuring Biden to use one of the few tools left in his arsenal: executive orders to shield abortion access.
ADVERTISEMENT
“The Biden administration must use the full power of the executive branch to reduce the harm created by hostile policymakers and courts to assist people in accessing abortion,” said Jacqueline Ayers, senior vice president of policy, organizing, and campaigns at the Planned Parenthood Federation of America. “We need every level of government to protect the access to care.”
In the weeks since the bombshell leak of a draft Supreme Court decision that eviscerated Roe, the 1973 ruling which determined the ability to end a pregnancy was a constitutional right, the White House has taken a wait-and-see approach to addressing the issue directly. On Tuesday, White House press secretary Karine Jean-Pierre repeatedly emphasized that the leaked opinion, though “something that concerns us,” was not a final ruling.
“It was a draft decision,” Jean-Pierre said of the case, Dobbs v. Jackson Women’s Health Organization. “We don’t want to get into hypotheticals and we don’t want to get ahead of what is actually going to come forth.”
But for supporters of abortion access who see the upcoming decision as a looming public health crisis, Biden’s apparent decision to wait for the Supreme Court to act first is wasting precious time.
“The time for inaction is long past. Abortion justice can’t wait,” said Morgan Hopkins, who directs campaign strategy at abortion-rights organizer All Above All. “As we await a final Supreme Court decision, elected officials on every level—including the White House and Congress—must make clear their plans to ensure abortion care is available in communities where we live.”
Biden’s own party members, too, are growing frustrated with the administration’s passivity on the issue. On June 6, nearly two dozen Senate Democrats published a letter outlining six potential executive orders that Biden could issue in advance of the Dobbs decision. The proposed orders—which would, among other things, seek to increase access to abortion medications, provide travel vouchers for patients who need to go to another state for an abortion, and analyze whether federal property could be used to provide reproductive care—are more topline goals than detailed policy proposals. Statements released by the letter’s authors, however, indicate that their main purpose is to spur Biden to proactively address Dobbs before the Supreme Court’s ruling.
“Democrats need to use every tool at their disposal to protect women and their constitutional right to an abortion. President Biden’s executive authority to marshall the resources of the entire federal government is one of our most powerful tools,” said Sen. Elizabeth Warren (D-MA), the letter’s lead author. “With an extremist Supreme Court poised to overturn Roe v. Wade, now is the time to act.”
Sen. Patty Murray (D-WA), one of the letter’s signatories, was more blunt with her frustration towards the White House’s handling of Dobbs.
“I pushed the Biden administration for a plan last month at a hearing, and now I’m demanding that they step up to the plate,” Murray said in a statement. “This is an all-hands-on-deck moment to protect abortion rights.”
Mary Ziegler, a professor at Florida State University College of Law who specializes in the legal history of abortion, told The Daily Beast that some of the proposals, like the creation of a reproductive health ombudsman at the Department of Health and Human Services, “seem more symbolic than anything else.”
Others, however, could represent a last, best chance for Biden to protect access to certain abortion services, particularly direct-to-patient abortion medications. The Biden administration could, for example, take the position that the Food and Drug Administration’s approval of mifepristone supersedes state laws restricting its use—a move that is hinted at in the first of the six proposed executive orders.
“The preemption argument would essentially be the Biden administration taking the position that if the FDA says that mifepristone is safe and effective, then states can't criminalize it,” Ziegler said. “But Biden has always been uncomfortable talking about abortion, much less prioritizing it.”
Such a move—like many of the proposed executive orders—would almost certainly lead to a court challenge. But abortion advocates, who have watched their opponents mount previously doomed legislative campaigns to overturn Roe with provocative legislation, say that an executive order with a narrow chance of succeeding is still better than doing nothing.
“If you don’t try to do anything, then obviously nothing will work,” Ziegler said. “There’s no guarantee that any of these things would succeed, but at least there’s a better chance than if the Biden administration just says and does nothing.”
Asked about the letter’s proposed executive orders—and the president’s apparent decision not to issue any until the Supreme Court’s final ruling—White House spokesperson Alexandra LaManna declined to discuss any potential responses before the decision is issued, but told The Daily Beast that the administration “continues to explore every possible option in response the anticipated Supreme Court decision in Dobbs.”
But Biden’s refusal to commit to any concrete steps beyond supporting the Women’s Health Protection Act, the failed legislation that would have codified Roe into federal law, has pissed off abortion advocates, who say that Biden’s own personal discomfort talking about abortion is making their job harder.
“Like, sir, we elected you to lead,” said Sherman. “You promised that you would rule as a pro-choice president, and you need to do it. Stop bullshitting us. I’m over it.”
