Bracing for the end of Roe v. Wade, the White House weighs executive actions
By Charlie Savage
President Joe Biden’s top aides are weighing whether he can or should take a series of executive actions to help women in Republican-controlled states obtain abortions if the Supreme Court eliminates a woman’s right to end her pregnancy, according to senior administration officials.
Some of the ideas under consideration include declaring a national public health emergency, readying the Justice Department to fight any attempt by states to criminalize travel for the purpose of obtaining an abortion, and asserting that Food and Drug Administration regulations granting approval to abortion medications preempt any state bans, the officials said.
Since a draft opinion was leaked last month indicating that the Supreme Court was prepared to overturn the landmark Roe v. Wade decision — an action that would prompt at least 20 states to prohibit or severely curtail access to abortion — abortion rights advocates have been lobbying the White House to take extraordinary steps to mitigate the effect.
“We are at a crisis moment for abortion access in this country, and officials at all levels of government must respond — including the executive branch,” said Marya Torrez, senior director of policy development and strategy at Planned Parenthood Federation of America.
No executive order can reestablish a constitutional right. It would take an act of Congress to restore a national legal standard barring states from outlawing abortion, and proponents currently lack sufficient votes in the Senate, where Republicans can filibuster such a bill. But Biden has signaled that he wants to move on his own.
“I don’t think the country will stand for it,” Biden told the talk show host Jimmy Kimmel last week in discussing the likely end of Roe v. Wade, adding: “There’s some executive orders I could employ, we believe. We’re looking at that right now.”
The White House counsel, Dana Remus, the director of its gender policy council, Jennifer Klein, and the director of its domestic policy council, Susan Rice, are overseeing the legal and policy vetting of potential executive actions. Anita Dunn, a senior policy adviser to Biden, is in charge of broader planning, including communications strategy, officials said.
The Supreme Court is expected to issue a decision at the end of its term in about two weeks, and White House aides believe the ruling could touch off a political crisis, including mass protests. Further complicating matters, the decision may come down while Biden is in Europe for the Group of 7 summit.
The contingency planning is also said to include what to do if such a fiercely polarizing development leads to acts of violence. The administration has already heightened security for the Supreme Court justices after one man, apparently angered by anticipated conservative rulings on abortion and guns, traveled to suburban Washington from California intending to kill Justice Brett Kavanaugh.
In the past, Biden has adopted a position that his legal team warned him was unlikely to stand up in court, betting that the political benefits of his executive actions outweighed the legal risks. In August, as House Democrats urged him to reverse course on letting a pandemic-related ban on evicting renters expire, Biden unilaterally extended the measure.
The move won praise from the left, at a moment when he needed to hold his coalition together in order to advance his legislative agenda. But while Biden’s decision bought a little more time for pandemic assistance funds to reach renters, its practical effect was limited because courts, as predicted, swiftly struck it down — and his critics accused him of lawlessness.
In the abortion debate, some of Biden’s advisers both inside and outside the administration are wary of providing Republicans with similar fodder, allowing them to shift the political narrative from what their party has or hasn’t done to raising the alarm about the overreach of executive power.
Not every idea has elicited the same degree of caution. For example, the administration appears likely to ask the Federal Trade Commission to push makers of apps that track menstrual cycles to warn users that the data could be used to identify women in the early stages of pregnancy.
But administration officials see other suggestions as extremely risky. One calls for Biden to invite abortion doctors to work at federal enclaves, like military bases, inside states that criminalize abortion. State prosecutors lack jurisdiction in such zones, so the federal government handles crimes there, and it is not always clear whether criminal laws at the state level apply.
Doctors might still face challenges to their state medical licenses. And while the Justice Department under Biden could decline to pursue charges as a policy matter, control of the department could flip in the 2024 presidential election, and federal prosecutors could then charge people with crimes, like abortion, retroactively.
The administration is also studying ideas to help pave the way for women in states banning abortion to obtain pills that can terminate a pregnancy during the first 10 weeks from out-of-state pharmacies. In December, the FDA approved a regulation allowing such drugs to be prescribed in telemedicine visits and distributed by mail.
One complication is that doctors are licensed at the state level, and practicing medicine without a license in another state is a crime, although it can be difficult to decide where a doctor consulting virtually with an out-of-state patient is “practicing.”
To provide doctors with legal cover, some supporters are urging the Biden administration to take several steps that would reimpose a degree of federal control over abortion law.
One idea is for the Department of Health and Human Services to declare a public health emergency based on expected patient surges at clinics in border states where abortion remains legal, and to use that emergency to invoke a 2005 law that shields doctors from legal liability for treating patients in a state where they are not licensed.
These advocates also want the FDA to declare that its regulation approving the use of abortion pills — or a strengthened version of the rule — preempts state laws banning abortion.
Both moves would rely on aggressive interpretations of the power Congress granted those agencies, and are likely to draw immediate court challenges, raising the possibility of rulings that limit the government’s flexibility under public health and drug safety laws.