The White House is scrambling to find methods to protect abortion rights. President Biden vowed to battle to maintain abortion access only hours after a leaked Supreme Court document suggested the court was prepared to overturn Roe v. Wade in the coming weeks.
In a statement released Tuesday, Biden added, "We will be ready when whatever verdict is issued."
However, a depressing truth emerged after marathon meetings and phone calls among White House officials, government lawyers, outside advisers, and federal agency employees: there's nothing the White House can do to substantially alter the post-Roe world. According to outside experts who spoke on the condition of anonymity, officials are debating whether Medicaid financing may be made available to women who travel to other states for abortions.
Although Congress can guarantee abortion access worldwide by enacting Roe v. Wade safeguards, there is general recognition within the White House that this option has been closed for the time being. To defend Roe v. Wade, Democrats have a razor-thin Senate majority, and senior Democrats have stated that they will not support abolishing the filibuster, which requires 60 votes to advance most legislation.
"A lot of what the Biden administration could do is window dressing," said Lawrence Gostin, director of Georgetown Law's O'Neill Institute for National and Global Health Law, who has advised the White House on its possibilities. "And Biden has very little power to change that."
According to one outside consultant informed on numerous sessions, Biden officials spent much of Tuesday panicking as they learned how few tools they had at their disposal. According to three outside advisers, officials are already hotly debating a number of administrative and regulatory moves the administration could take to make it easier for women in red states — particularly poor women — to receive abortion care.
Officials privately acknowledge, however, that practically every administrative move will be challenged in court by Republican attorneys general, and that many of those challenges will be successful. Even if they don't, the action might be halted for months.
"Everything they do will be contested in court, and every [government] lawyer agrees," said one outside adviser, who spoke on the condition of anonymity to protect the confidentiality of private conversations. "A slew of attorneys general will band together, and the government will lose." This is due in part to the fact that a court that overturns Roe is unlikely to look kindly on acts taken to get around the verdict.
Biden has encouraged Congress to codify Roe v. Wade, the only option for protecting abortion rights outside of the Supreme Court — or a constitutional amendment, which looks even less likely — Democrats, on the other hand, acknowledge that such an attempt appears to be out of reach. To secure a right to abortion with a simple majority, Democrats would have to vote to end the filibuster, but Sens. Joe Manchin III (D-WVa.) and Kyrsten Sinema (D-Ariz.) have declared they will not support such a rule change.
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