White House says if Roe is overturned, ‘we will need Congress’ to restore it

A decision is coming this month, possibly as early as Monday, in the Dobbs v. Jackson Women’s Health Center case. Based on a leaked draft opinion, it appears there is a majority in favor of overturning 1973’s landmark Roe v. Wade ruling and 1992’s Planned Parenthood v. Casey.

“The administration continues to explore every possible option in response to the anticipated Supreme Court decision” on abortion, said White House press secretary Karine Jean-Pierre at Thursday’s briefing.

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But President Joe Biden’s chief spokeswoman also suggested it would take an act of Congress to protect legal abortion. “If the Supreme Court overturns Roe, we will need Congress to take action to restore Roe,” she said.

The Senate has taken up federal abortion rights legislation in anticipation of Dobbs. The bill, which went beyond codifying Roe, failed, with a majority voting against it.

Liberals have been frustrated by the pace at which Biden has embraced executive action to address gun violence, abortion, immigration, and other issues. The White House has often found its legal options limited, and courts have rebuffed the administration when it has pushed the envelope in the past.

Congress has not fared much better. The Senate is split 50-50, only under Democratic control because Vice President Kamala Harris holds a tiebreaking vote. But that leaves Democrats 10 votes short of being able to overcome Republican filibusters, and they rely on the least liberal members of their own caucus to pass legislation, even through the partisan reconciliation process.

This has meant Senate Democrats have been unable to pass their priorities on social welfare and climate spending, voting, and filibuster reform, as well as abortion.

Democrats have had more success passing bills in the House, but their five-vote majority is about to decline to four after the Republican victory in Texas’s 34th Congressional District on Tuesday night.

Those small majorities are on the ballot this November, further imperiled by Biden’s low job approval ratings and perceived inaction. The White House has tried to use Roe’s precarious position as a rallying cry for this year’s elections.

Five conservative justices nominated by Republican presidents are believed to be in favor of reversing Roe, with Chief Justice John Roberts’s vote still undecided. Three of them were appointed by former President Donald Trump, who lost the 2020 election to Biden. Biden’s pick for the Supreme Court, Judge Ketanji Brown Jackson, will not be seated until after the decision is handed down but would not alter the outcome.

“If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November,” Biden said in a statement the day the Dobbs draft opinion leaked. “At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

But it is also possible that even voters who agree with Biden on abortion will view such a decision as another issue on which the president was unable to act or influence the end result, further demoralizing the liberal base in a cycle in which Republicans and independents are highly motivated to turn out against the Democrats.

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Senate Majority Leader Chuck Schumer (D-NY) also made the strategic choice to advance the most liberal abortion bill under consideration, guaranteeing that Sens. Susan Collins (R-ME), Lisa Murkowski (R-AK), and Joe Manchin (D-WV) would be unable to vote for it. A less far-reaching bill still would have failed, but it would have been defeated by a GOP filibuster and might have achieved bipartisan majority support on the cloture vote.

Liberals feared Roe would fall in 1992, on the eve of Democrat Bill Clinton’s election as president. Republicans had held the White House for 12 years and appointed a majority of the court, and the last Democratic-nominated justice was Byron White, who had dissented in Roe originally. But Casey upheld Roe’s core, holding 5-4.

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